Colburn v. Parrett

CONREY, P. J.

John R. Colburn, a physician, commenced this action against the executor of the last will and testament of Rosa Page, deceased, to recover a sum claimed as compensation for professional services rendered to the decedent. Judgment having been rendered against the defendant, he appeals therefrom and from an order denying his motion for a new trial. Pending appeal plaintiff died, and John R. Colburn, administrator, has been substituted as respondent herein.

It is claimed by appellant, that the action is barred by failure of the plaintiff to bring the same within three months after the rejection of the creditor’s claim. The plaintiff presented his claim to the defendant on March 15, 1913, and presented an amended claim on June 10, 1913. The executor took no action upon the claim as first presented, but on March 26, 1913, one H. A. Decker, purporting to act for the attorneys for the executor, notified the claimant that his claim “for services in the sum of $301.00 is hereby rejected. The amount stated in the claim is too large. Tour claim should be more particularly itemized.” The amended claim having been presented as above stated, it was rejected by the executor on July 9, 1913. Plaintiff’s complaint herein was filed on

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September 4, 1913. The executor’s first publication of notice to creditors was made on March 6, 1913. It thus appears that the amended claim was presented within due time after the first publication of notice to creditors, and at a time when the executor had not acted upon the claim theretofore presented, as required by law. (Code Civ. Proc., sec. 1496.) The time within which plaintiff’s action must be commenced was fixed by the rejection of the claim; the complaint having been filed within three months thereafter, the action was not barred. (Code Civ. Proc., sec. 1498.)

At the trial the plaintiff was sworn as a witness and identified an account book which he said was used by him “in the course of his business and profession” and all the items therein were in his own handwriting. Against objections of the defendant, the witness was permitted to testify that the items contained in this account book were entered at or about the time the transactions took place and that these items were true and correct. Against like objections, the entries referred to, covering a series of items of service to defendant’s testator, were admitted in evidence. Without the testimony mentioned above and the statement of account admitted therewith, the evidence would be insufficient to support the findings that the services were rendered as alleged and that the account is correct as to charges made. The admission in evidence of the claim as presented to the executor, with its attached affidavit by the claimant, was solely for the purpose of showing that plaintiff had presented his claim as required by law, and could not be taken as supplying proof of rendition of the services or of their value. The decision in