IN RE: Estate of Clara Edith VOSE

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Court of Appeal, Fourth District, Division 1, California.

IN RE: Estate of Clara Edith VOSE, Deceased. The FIRST NATIONAL BANK OF ORANGE COUNTY, as Executor, etc., Appellant, v. SANTA ANA MEDICAL CLINIC, Respondent.

The FIRST NATIONAL BANK OF ORANGE COUNTY, as Executor, etc., Petitioner, v. SUPERIOR COURT, ETC., ORANGE COUNTY, Respondent; SANTA ANA MEDICAL CLINIC, Real Party in Interest.

Civ. 9580, 9728.

Decided: July 22, 1969

Rimel, Harvey & Helsing and Duffern H. Helsing, Santa Ana, for appellant and petitioner. Hunt, Liljestrom & Wentworth and John G. Bradshaw, Santa Ana, for respondent and real party in interest, Santa Ana Medical Clinic. No appearance for respondent Superior Court.

OPINION

The Orange County Superior Court ordered the filing of Santa Ana Medical Clinic's amended creditor's claim in Estate of Clara Edith Vose. The executor, The First National Bank of Orange County, first published Notice to Creditors on December 12, 1967.

The Clinic claims it sent on January 2, 1968, a bill to the executor's attorneys for $7,500 for total medical services provided Mrs. Vose. The undated bill does not show the nature of services or when they were performed. It merely states services requiring extensive visits and time were rendered Mrs. Vose while she was in a hospital and convalescent home.

The bill contained no affidavit, declaration or verification stating the amount was justly due, no payments had been made which were not credited, and there were no offsets to the sum owing to the claimant's knowledge.

The six month period for the filing of creditor's claims ended on June 12, 1968. On July 12, the Clinic mailed a properly verified creditor's claim to the executor's attorneys, which the executor rejected August 6 as being late.

The Clinic then noticed a motion for an order allowing the filing of an amended creditor's claim, contending the absence of a verification of the bill it claimed to have mailed January 2, 1968 was a mere formal deficiency. After hearing on November 12, 1968, the court granted the motion, finding the Clinic had presented a claim in the form of a bill to the Estate on January 2, 1968. The court made an order allowing the filing of the claim as amended by adding the required verification, effective nunc pro tunc January 2, 1968.

1. Appealability of the Order.

The right of appeal in probate matters is purely statutory; the only appealable judgments and orders in probate matters are those listed in Probate Code section 1240. (Estate of Hart, 119 Cal.App.2d 310, 312, 259 P.2d 703.) An order allowing filing of an amended claim is not among those listed as appealable orders. The appeal should be dismissed.

2. The trial court's jurisdiction to allow the amended claim to be filed.

The bill allegedly sent by the Clinic to the attorneys is not a creditor's claim. It lacked verification. Probate Code, section 705 is specific in requiring the claim be supported by an affidavit of the claimant or one in his behalf stating: 1) the amount is justly due, 2) no payments have been made which are not credited and 3) there are no offsets to the claim to the affiant's knowledge.

‘[T]he claim must of necessity be authenticated by a verification which on its face contains the essential matters prescribed by section 1494, [now Prob.Code, § 705] Code of Civil Procedure.’ (Doolittle v. McConnell, 178 Cal. 697, 712, 174 P. 305.)

Bank of America National Trust and Savings Ass'n v. Gesler, 252 Cal.App.2d 565, 60 Cal.Rptr. 657, holds a creditor's claim, defective for lack of verification, may not be amended to add the verification after the statute of limitations for the filing of creditors' claims had run. The verification on a creditor's claim is not optional. The Probate Code requires it. Verification is a matter of substance and amendments in matters of substance may not be made after the time for presenting claims has expired. (See Bank of America National Trust and Savings Ass'n v. Gesler, supra, 252 Cal.App.2d 565, 567–568, 60 Cal.Rptr. 657; In re Sullenberger, 72 Cal. 549, 552, 14 P. 513.) In the case before us the probate court in effect allowed the filing of an original creditor's claim five months after the time had expired to file creditors' claims. (Prob.Code, § 700.) This exceeded the court's jurisdiction.

3. Appropriate Relief.

The executor has also sought relief by petitioning for a writ of prohibition. Prohibition is not appropriate.

‘[P]rohibition ordinarily issues only to prevent future judicial acts rather than to undo acts already performed.’ (Melancon v. Superior Court, 42 Cal.2d 698, 704–705, 268 P.2d 1050.)

We treat the executor's petition as one for a writ of review.

‘[U]nder a writ of review, the evidence of facts upon which the lower court or tribunal depended for its jurisdiction may be considered, and its judgment set aside if jurisdiction is without support in the evidence, * * *.’ (Van Hoosear v. Railroad Commission, 189 Cal. 228, 236, 207 P. 903.)

(See also Wallace v. Superior Court, 141 Cal.App.2d 771, 774, 298 P.2d 69.)

No purpose would be served to deny relief now and require the executor to wait until the creditor brings a separate action under the general jurisdiction of the superior court.

The appeal is dismissed. The order under review is annulled.

GERALD BROWN, Presiding Justice.

COUGHLIN, J., and AULT, J. pro tem.*, concur.