Kelly v. County of Los Angeles Department of Charities

[42]

McCOMB, J.

From orders disapproving and denying the first and final account and the petition for distribution of the administratrix, and from an order allowing and approving the claim of the county of Los Angeles and refusing to strike it from the record, administratrix appeals.

Facts:

Letters of administration were issued November 9, 1946. The estate was subsequently appraised at $1,033.33. A claim of the county of Los Angeles for $554.89 for hospital care provided for the wife of the deceased between September, 1938, and December, 1941, was filed and approved.

At the same time there was filed a waiver of the statute of limitations signed by decedent wherein he agreed to reimburse the county of Los Angeles for care given to his wife. Previous to the date of the signing of the agreement and at the time thereof decedent was confined in a hospital for the mentally unsound. The claim of the county was approved by the administratrix in open court on March 7, 1949.

Thereafter the administratrix made a motion to strike the approval, and at the time of the filing of the account and petition for distribution here in question she sought the allowance of the sum of $1,033.02 for funeral expenses of the decedent allegedly advanced by the administratrix.

Questions:

First:

Was appellant's motion to strike out the claim of the county which had been approved March 7, 1949, made within the time allowed by law?

This question must be answered in the negative. Such motion made under section 473 of the Code of Civil Procedure, which section provides that application for relief under it “must be made within a reasonable time and in no case exceeding 6 months after such . . . order . . . was taken, ’ ’ was untimely. In the present case the claim was approved March 7, 1949, and the motion to set it aside was made more than nine months later, to wit, December 12, 1949. Therefore the court was without jurisdiction to entertain the motion.

If appellant’s proceeding be considered as an attempt to recoup, in objecting to the account which she signed, she is barred from recovering for the reason that the allowance and approval of a claim is binding between the actual parties and the representative of an estate cannot question the validity of the claim after it has been approved upon a proceeding to obtain an order for the payment of money.