L. Harter Co. v. Geisel

HALL, J.

Plaintiff brought this action to recover of Elvira Geisel, as principal, and the United States Fidelity and Guaranty Company, as surety, the sum of $1,587.31, being the

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amount of plaintiff’s claim against the estate of Eugene Emil Geisel, deceased, ordered by the superior court to be paid to plaintiff by said Elvira Geisel upon the settlement of her final account as administratrix of said estate.

Defendant Elvira Geisel, after demurrer overruled, failed to answer to the complaint, and her default was duly entered.

The surety, the defendant corporation, answered the complaint, but upon motion of the plaintiff the court entered judgment against it upon the pleadings for the amount sued for. From this judgment said defendant has appealed to this court.

The complaint sets up the various matters of inducement concerning the appointment of Elvira Geisel as administratrix of the estate of said deceased by the superior court of the city and county of San Francisco, the giving and approval of the bond sued on, and the like.

It is then alleged, “That on or about the 21st day of January, 19Q9, said court duly approved and allowed the claim of said plaintiff against the estate of said deceased for the sum of $1,587.31.”

“That on or about the 26th day of May, 1909, said court duly and regularly made, rendered and signed a judgment and decree, settling the first and final account of said executrix; that said judgment ordered, adjudged and decreed that there was a sufficiency of assets for the payment in full of the indebtedness of said estate, and further directed that said executrix pay to said plaintiff the sum of $1,587.31.”

Additional allegations show that said judgment and decree was entered in the minutes of the court August 20, 1909; that it has never been appealed from, and has become final, and is in full force and effect, and that no part of the said sum of $1,587.31 has been paid to plaintiff.

The only defense attempted to be set up in the answer of appellant is that the claim of plaintiff ordered to be paid in the decree settling the final account of the administratrix was not presented to the administratrix for allowance within the time limited by the law and the notice to creditors.