RICHARDSON v. ROYAL INDEMNITY CO

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District Court of Appeal, Fourth District, California.

RICHARDSON v. ROYAL INDEMNITY CO.

Civ. 2843.

Decided: August 03, 1942

F. L. Richardson, of San Diego, in pro. per., for appellant. Gray, Cary, Ames & Driscoll and Burton D. Wood, all of San Diego, for respondent.

This is an appeal from a judgment in favor of respondent rendered on October 20, 1941, after its objection had been sustained to the introduction of any evidence by appellant on the ground that the second amended complaint failed to state facts sufficient to constitute a cause of action.

The second amended complaint contained two causes of action.

In the first cause of action it was alleged that Charles T. Chandler was administrator of the estate of Anna Baxter, deceased, from May 8, 1922, to the time of his death in 1935, at which time the estate had not been closed; that defendant had furnished his bond as such administrator; that on June 29, 1922, an inventory was returned in which the assets of the estate were appraised at $31,700.25; that other property of the estate valued at $16,623.25 was in the hands of Chandler which he failed to inventory; that he was indebted to the estate in that amount; that on May 11, 1925, Chandler, as administrator, made his first annual and final account and petition for distribution which did not include assets of the estate in his possession of the value of $17,237.08; that the account came on for hearing on August 16, 1938; that the court found that Chandler had received $32,279.81 belonging to the estate and had disbursed $31,665.98, leaving a balance of $623.83 for distribution. It was further alleged that the $17,237.08 belonging to the estate was concealed from the court and had been wrongfully appropriated by Chandler; that at the time of the commencement of this action (May 11, 1940) R. F. Smith was the administrator of the estate of Chandler; that plaintiff as administrator of the estate of Anna Baxter, deceased, presented a claim for $17,237.08 against the estate of Chandler which was allowed by Smith and approved by the probate court; that the approval thereof by the court was thereafter vacated; that on the 12th day of July, 1940, Smith was removed from his office and Kathleen C. Bach was appointed in his stead.

In the second cause of action it is alleged that on October 5, 1908, Anna Baxter was adjudged to be insane and incompetent; that John R. Baxter was appointed guardian of her person and estate and continued to act as such until his death in 1919, when Charles T. Chandler was appointed in his stead and continued to act as such until her death on March 2, 1922; that thereafter Chandler was appointed administrator of her estate; that defendant furnished his bond; that on June 5, 1922, Chandler filed his third annual and final account as guardian showing he had on hand assets of the estate in the sum of $31,295.25 when in fact he had assets of the value of $46,417.80, thus concealing assets of the value of $15,122.55; that his account was approved and he as guardian was ordered to turn over to himself as administrator the assets of the guardianship estate; that he failed and refused to deliver to himself as administrator assets of the value of $15,122.55 which he appropriated to his own use; that the heirs of Anna Baxter did not discover this misappropriation until June, 1937; that Chandler had rendered his final account in the estate of Anna Baxter, deceased, which had not been settled prior to his death; that on June 11, 1937, plaintiff was appointed administrator of the estate of Anna Baxter, deceased; that on September 10, 1937, R. F. Smith was appointed administrator of the estate of Chandler and filed an amended account showing that Chandler had received assets belonging to Anna Baxter of the value of $17,901.53 more than shown in Chandler's final account; that on August 16, 1938, both accounts came on for hearing and the probate court refused to settle the amended account filed by Smith, but did settle the account for the amount shown in the account filed by Chandler; that an appeal was taken from this order and it was affirmed by the Supreme Court.

A demurrer both general and special, including the plea of the statute of limitations was interposed to both causes of action. It was sustained to the first cause of action without leave to amend and was overruled as to the second cause of action. The minute order on the demurrer was made on January 27, 1941. A formal judgment of dismissal of the first cause of action was filed and entered February 3, 1941. No appeal was taken from this judgment.

On January 3, 1941, and prior to the ruling on the demurrer plaintiff had dismissed the action, with prejudice, against Kathleen C. Bach as administratrix of the estate of Charles T. Chandler, deceased. This left the Royal Indemnity Company, the surety on the bonds, as the sole defendant in the action.

The same questions presented here were before the Supreme Court in Re Estate of Baxter, 15 Cal.2d 166, 99 P.2d 276 (see, also, In re Estate of Baxter, Cal.App., 91 P.2d 962) with the parties here then before that court. The order of the probate court was affirmed. Additional facts appear in that opinion which need not be repeated here.

It seems probable that this action was instituted in accordance with a suggestion contained in the opinion in Re Estate of Baxter, supra. As the orders and decrees in the guardianship proceeding had long since become final they could not be collaterally attacked in the probate proceeding. However they might be reviewed in a proper equity case if extrinsic fraud could be established.

It seems to have been the original intention of plaintiff to bring an equitable action to recover from the estate of Chandler and his bondsman, the money alleged to have been misappropriated belonging to Anna Baxter. While the pleading lacks many appropriate allegations we assume that such was the purpose of the instant action.

When the plaintiff dismissed with prejudice the action against Kathleen C. Bach as the administratrix of the estate of Chandler, deceased, he eliminated the equitable features from the case. It left the Royal Indemnity Company, the surety, as the sole defendant. The action then became one at law against the surety on its contract, without the presence of the principal or his personal representative and without any opportunity to determine, as against the principal, his liability to Estate of Baxter, if any. In this action at law against the surety, the plaintiff had confronting him the orders and decrees in the probate and guardianship proceedings which had long since become final and which could not be collaterally attacked in this action at law. In re Estate of Baxter, supra; In re Estate of Madsen, 31 Cal.App.2d 240, 87 P.2d 903. Those orders and decrees found in effect that Chandler had finally accounted for all of the estate of the incompetent in the guardianship and all of the estate of the deceased in the probate proceedings. Until set aside in a proper proceeding, defendant was entitled to full protection of those decrees. Under this state of the record when this came on for trial on October 17, 1941, the second amended complaint failed to state facts sufficient to constitute a cause of action and defendant's objection to the introduction of any evidence by plaintiff was properly sustained. The judgment was filed and entered on October 20, 1941.

Plaintiff urges that the trial court committed prejudicial error in refusing to permit him to file a third amended complaint. The record contains an order dated November 14, 1941, denying a request to file such a pleading made on October 17, 1941. There is no notice of any motion to file such a pleading and nothing to indicate that any such pleading was presented to the trial judge at that time. There is nothing to indicate a request to bring in additional parties.

There is a pleading in the record denominated “Third Amended Complaint * * *” marked “Filed Oct. 21, 1941.” It names The Royal Indemnity Company and Kathleen C. Bach, administratrix of the Estate of Charles T. Chandler, deceased, as defendants. There is nothing in the record to connect this pleading with the request to amend. After January 3, 1941, Kathleen C. Bach, as administratrix, was not a party to the action. No proceedings were had to again make her a party if it could have been done after the action against her had been dismissed “with prejudice.”

Under these circumstances there was no breach of discretion in refusing the request to file a third amended complaint.

The judgment is affirmed.

MARKS, Justice.

BARNARD, P. J., and GRIFFIN, J., concurred.