California Bank v. Stimson

WHITE, J.

This is an action to recover a deficiency on a trust deed note executed by Harriet Ogilvie and payable to plaintiff California Bank. The note and trust deed were executed on October 19, 1933. The trust deed was foreclosed by exercise of the power of sale on December 16, 1941,

Harriet Ogilvie died on or about October 11, 1941. Marshall Stimson was thereafter appointed, qualified as administrator of her estate, and caused notice to creditors to be published

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on June 9, 1943. Thereafter, letters testamentary in said estate were issued to defendant and intervener Paul Morgan Ogilvie. On or about July 19, 1943, plaintiff bank filed a duly verified claim against the estate for the unpaid balance of said promissory note. Neither the administrator nor the executor took any action on such claim and the same was neither allowed nor rejected.

On June 26,1945, plaintiff bank filed an action for $7,416.03, asking for a deficiency judgment. So far as here pertinent, the claim set forth the note and trust deed, and alleged the sale of the property on December 16, 1941, which was some four and one-half years prior to the institution of the action for a deficiency judgment.

On September 25, 1945, the administrator and executor of the estate filed their joint answer, and on October 9, 1945, Paul Morgan Ogilvie individually was permitted to file an answer in intervention.

Since the only question to be determined is the correctness of the court’s ruling on the defendant’s objection to the taking of any evidence, a recital of further facts or proceedings becomes unnecessary.

Because on March 3, 1947, Marshall Stimson had been discharged as administrator, plaintiff consented to a dismissal of the action as to him in his capacity as administrator of the estate of Harriet Ogilvie, deceased. .

When the cause was called for trial, defendant executor objected to the taking of any evidence on the ground that the complaint did not state facts sufficient to constitute a cause of action, based on the contention that the same was filed more than three months after the foreclosure sale of the property under the trust deed (Code Civ. Proc., § 580a). The objection was sustained and judgment entered for defendant and intervener, from which plaintiff prosecutes this appeal.