Hector v. Superior Court

STEEL, J.,

pro tem.

This is a proceeding in

mandamus

by which petitioners seek to compel the respondent court to proceed with the trial of a certain action pending in said court upon a rejected probate claim.

The plaintiff Phillips is a coexecutor with the defendants Hector (petitioners herein), and the claim in dispute is based upon a promissory note alleged to have been executed by decedent- to plaintiff together with an acknowledgment of indebtedness in the like sum to cover the same obligation, which is also alleged to be owned and held by the plaintiff.

The record discloses that the promissory note and statement of indebtedness were found by the executors in decedent’s safe deposit box, wherein claimant states he kept them and to which he claims to have had joint access with decedent.

Prior to the date set for trial in the rejected claim suit, the claimant Phillips filed another action against the co-executors Hector to quiet title to and secure the possession

[554]

of said promissory note, and thereupon moved the respondent court for an order postponing the trial of the first suit until the trial of the second. The respondent court granted the motion and hence this proceeding in mandate to compel said court to proceed with the trial of the first action upon the rejected claim.

The action of the respondent court is within its administrative discretion in the conduct of the court’s business, and the record presents no abuse thereof. It is not to be anticipated or presumed that there will be any undue delay in the trial of the second action and in the absence of such a showing, the respondent court is clearly entitled to regulate the order of the trial of the two actions.

While the foregoing considerations control the issuance of the writ, petitioners urge that the plaintiff in these actions is incompetent as a witness in both.

While the plaintiff cannot in his action upon the rejected claim—the first action—testify as to any matter of fact occurring before the death of decedent (subdivision 3 of section 1880, Code Civ. Proe.), the statute is limited in terms to an action upon a “claim or demand” against the estate.