Salinas National Bank v. Cook

BRAY, J.

From a judgment of foreclosure of a deed of trust, defendant Kilmartin as administrator of the estate of Ellen Abbott, also known as Ellen Cook, deceased, sued herein as John Doe, appeals on the judgment roll alone. While the notice of appeal includes an appeal from the entire judgment,

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defendant’s brief and stipulation at argument limits the appeal to that portion of the judgment allowing plaintiff attorneys’ fees, cost of title report and costs of suit.

Question Presented

Can failure to allege presentation to the estate of claim for attorneys’ fees, cost of title report and court costs be raised for the first time on appeal

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Facts

On May 5, 1948, plaintiff sued to foreclose a certain deed of trust executed in 1945 by Willis Cook and Ellen Cook. Ellen Cook was a named defendant. On July 12, 1948, she died. Thereafter defendant Kilmartin as administrator was served as a John Doe. He filed a general denial of the allegations of the complaint. The deed of trust provided, in ease of default, for attorneys’ fees, cost of title report and costs of suit. After a trial the court rendered a judgment of foreclosure for the principal and interest of the note which the deed of trust secured, plus $7,500 attorneys’ fees, $163.20 cost of title report, $25.65 interest on costs advanced by plaintiff, and $24 costs of suit. The defendant Willis Cook (who did not appeal) alone was made liable for any deficiency judgment.

Failure to Make Contention in Trial Court

After.the death of Ellen Cook the complaint was amended alleging her death and the appointment of defendant Kilmartin as administrator. It was not alleged, nor was any proof offered, to show that any claim was ever presented to the estate. There is no finding of the filing of such claim.

Section 709 of the Probate Code provides: “If an action is pending against the decedent at the time of his death, the plaintiff must in like manner file his claim with the clerk or present it to the executor or administrator for allowance or rejection, authenticated as required in other eases; and no recovery shall be had in the action unless proof is made of such filing or presentation.”