Kohn v. Rupley

FINCH, P. J.

Plaintiff, being the owner of a promissory note and mortgage executed by the testator, presented his claim for the amount due thereon more than three months prior to the time the same would have become barred by

[566]

the statute of limitations. The executor and the judge of the superior court allowed the claim a few days after it had apparently become barred. Thereafter, as required by law, the executor rendered, “a full account and report of his administration.” The report contained a list of claims allowed and filed, among which was plaintiff’s claim with a statement of the name of' the claimant, the amount of the claim, that it was secured by mortgage, and the dates of presentation and allowance thereof. After due notice and hearing the account was by the court “allowed, settled and approved.” Thereafter this suit was brought and the defendants pleaded the statute of limitations as a defense thereto. The court rendered judgment for plaintiff reforming the mortgage and foreclosing the same as so reformed.

[1]

The only question presented by the appeal is whether the allowance of the account as stated is a conclusive adjudication against the defendants as to the validity of the claim upon which this suit is based. The question was answered in the affirmative in

Estate of McDougald,

146 Cal. 191 [79 Pac. 878], and

Kowalshy

v.

Superior Court,

13 Cal. App. 218 [109 Pac. 158], where the same issue was presented. Appellants contend that these cases have been overruled by the later decisions in

Haub

v.

Leggett,

160 Cal. 494 [117 Pac. 556], where it is said that “an allowed claim against an estate does not attain to the dignity and force of an absolute judgment until, upon the settlement of an account, an order is made directing the executor to pay it,” and