United States Gypsum Co. v. Shaffer

California Supreme Court Sep 21, 1936 No. L. A. 15830Published

Before: Shenk

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Holding. The court held that a notice of motion served upon an executor, which informs the estate of an outstanding judgment and the claimant's intent to prosecute it, constitutes a sufficient claim to support a subsequent court-ordered amendment, or alternatively, that no formal claim is required when an action is continued against an estate after judgment.

Issues

Whether a notice of motion served on an executor regarding a pending judgment constitutes a sufficient claim against an estate to allow for a later amendment.
Whether a formal creditor's claim is required when an action is continued against an estate after the death of the defendant following judgment.

Disposition. reversed

Quotations verified verbatim against the opinion

“any notice presented to the executor or administrator which informs him of the outstanding claim is sufficient at least upon which to base an order permitting an amendment to supply the missing formalities or any deficiencies.”

“it appears either that a claim was not required to be filed, or that the presentation to the proper person of the notice of motion of May 16, 1933, and appearance pursuant thereto served as a presentation of notice of the plaintiff’s claim”

SHENK, J.

The plaintiff brought an action on a creditor’s claim against the estate of Cornie W. Hart, deceased. From a judgment for the defendant executors the plaintiff has taken this appeal.

The plaintiff obtained a judgment against Cornie W. Hart in her lifetime in the sum of $2,226.99, with interest from October 6, 1930, the date of the judgment. She appealed from that judgment and filed a bond to stay execution pending the appeal. The judgment was affirmed on July 17, 1934

(United States Gypsum Co.

Snyder-Ashe Co.,

139 Cal. App. 731 [34 Pac. (2d) 767]). In the meantime and on December 2, 1932, she died and on January 5, 1933, Fred E. Peterson, Karl W. Hart and Harold W. Hart were appointed executors of her will and qualified as such. Fred E. Peterson had_ represented Cornie W. Hart as her attorney in the trial of the action and on her appeal from the judgment hereinbefore mentioned. On May 16, 1933, and prior to the expiration of the time for filing claims of creditors against the estate of Cornie W. Hart, but without actual knowledge of her death, the plaintiff served in that action on Fred E. Peterson, as attorney for Cornie W. Hart, a notice of motion to require her to furnish a new undertaking on appeal. Service of said notice was acknowledged in writing by said Peterson, who also personally appeared on the hearing of said motion in opposition thereto, without disclosing the fact of the death of his client or having himself and the other executors substituted as parties defendant, or making any objection to the jurisdiction of the court to render any order therein.

On December 27, 1933, and after the expiration of the time for filing creditors ’ claims against the estate, the plaintiff filed and served in the matter of said estate a notice of motion for permission to file an amended claim for payment of its judgment. After hearing upon said motion the probate court granted leave to the claimant to file such amended claim with the same effect as though it had been filed on May 16, 1933, when the notice of motion to require the defendant..Cornie W. Hart to furnish a new undertaking was served on Fred E. Peterson. An amended claim with the required supporting

[457]

United States Gypsum Co. v. Shaffer

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SHENK, J.

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