Burr v. Goodwin

MORTON, J.,

pro

tem.

This is an appeal by the claimant from a judgment in favor of the administrator on a rejected claim.

Shortly prior to his death decedent filed an action against the appellant bank for charging and collecting usurious interest from him. R. N. Goodwin, as administrator, was substituted as plaintiff, and in its answer the bank pleaded

[540]

certain promissory notes executed by decedent and held by the bank, as a counterclaim and set-off thereto. A claim on the notes had been presented to the administrator but he had not approved or rejected it at the time of the trial, although more than ten days had elapsed since the presentation of the claim. Judgment was for the plaintiff and the court held that the amount of the notes was not available as a set-off because the claim filed in the estate did not contain copies of the notes. No appeal was taken from this judgment. A few days after the trial court, had rendered its opinion and before judgment had been entered, the bank filed a new claim with the administrator, although more than ten months had elapsed since the first publication of the notice to creditors. This second claim was rejected by written notice, and suit was then filed thereon. Judgment was for defendant, and plaintiff appeals.

Two points present themselves for determination: First, whether the form of notice to creditors was sufficient; second, whether the judgment in the former suit precluded the claimant from recovering in the present action upon the second claim filed.

The notice to creditors in the Goodwin estate which is attacked by appellant as insufficient directed “the creditors of and all persons having claims against the said deceased, to exhibit the same with the necessary vouchers within ten months after the first publication of this notice to the administrator, at the law office of M. C. Atchison, 201 City Market Building, Calexico, California”. The notice omits the alternative provision of allowing claims to be filed “in the office of the clerk of the court from which letters were issued”. (Sec. 1490, Code Civ. Proc.) The evidence does not disclose whether or not a decree establishing due notice to creditors had been granted in this estate. However, such a decree would not be conclusive in the face of satisfactory evidence showing that the publication of the notice to creditors was insufficient.