O'Malley v. Carrick

[521]

KNIGHT, J.

In this action the trial court made an order sustaining a demurrer to the complaint without' leave to amend, and from the judgment entered in favor of defendants pursuant to such order the plaintiff appeals.

In the first paragraph of the complaint it was alleged that James R. Garrick died intestate on January 9, 1923; that on February 8, 1923, one of the defendants above named was appointed administratrix of his estate, and that both defendants were his only heirs at law, and as such succeeded to his estate. In the second and concluding paragraph of the complaint it was alleged that “at the time of his death the said decedent was an administrator of the estate of Catherine Ross, deceased, and defendant as such in an action brought against him by plaintiff, M. J. O’Malley, in the superior court in and for the city and county of San Francisco, and in which action the said M. J. O’Malley as plaintiff therein recovered judgment for costs against said James R. Garrick. That the costs expended by said M. J. O’Malley in said action and remaining unpaid her is the sum of four hundred and fifty-three and 35/100 dollars’’, for which amount judgment was prayed. The grounds of the demurrer were that the complaint did not state facts sufficient to constitute a cause of action against defendants or either of them, and that the cause of action attempted to be stated therein was barred by the statute of limitations.

As will be seen from the allegations of the complaint, the plaintiff seeks to hold defendants liable for a judgment of costs rendered against James R. Garrick, as administrator of the estate of Ross, several years prior to the commencement of this action, upon the theory that being his heirs at law and having succeeded to his estate, they are liable for his debts. We are of the opinion that no such liability existed and therefore that the demurrer was properly sustained without leave to amend.

Sections 1031 and 1509 of the Code of Civil Procedure each purport to declare a rule dealing with the individual liability of an administrator for costs incurred by him as such administrator in prosecuting or defending actions on behalf of the estate he represents; and there appears to be some confusion in the authorities as to whether the rules there set forth are conflicting.