Hawkins v. Superior Court (1913) · DecisionDepot

Hawkins v. Superior Court

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 25, 1913 No. S.F. No. 6502.Published

Before: Shaw, Lorigan

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Holding. The court held that the requirements of Section 1491a of the Code of Civil Procedure, regarding the timely filing of a printed copy of the notice to creditors, are mandatory rather than directory. Consequently, compliance with Section 1491a is a prerequisite to the court issuing a decree establishing due notice to creditors.

Issues

Whether the provisions of Section 1491a of the Code of Civil Procedure are mandatory or directory.
Whether compliance with Section 1491a is a prerequisite for a court to issue a decree establishing due notice to creditors under Section 1492.

Disposition. dismissed

Quotations verified verbatim against the opinion

“We are satisfied that both from the language used and the purpose to be attained it was intended that the section should be mandatory and the superior court properly so construed it.”

“the purpose of the legislature was to make such filing a prerequisite to full notice to creditors, we think it was the intention of the legislature that there should be a compliance with the section and proof thereof”

Synopsis

APPLICATION for a Writ of Mandate directed to the Superior Court of Marin County. E. T. Zook, Judge.

The facts are stated in the opinion of the court.

Opinion — Lorigan

LORIGAN, J.

During the administration of the above estate in the superior court of Marin County, that court on November 7, 1911, made an order directing publication of notice to creditors.

On December 2, 1911, the petitioner, as executor, commenced the publication of said notice in the

Marin County Tocsin,

a newspaper published in Marin County. On May 1, 1912, he caused to be filed in said estate an affidavit in proper form and substance showing publication of said notice for the statutory time, and on the same day had a printed copy of said notice filed, accompanied by a statement of the date of the first publication thereof, and the name of the newspaper

[744]

in- which it was printed. On January 8, 1913, the petitioner applied to said superior court in the matter of said estate for a decree establishing due notice to creditors based on the affidavit of publication and the notice of publication referred to.

The superior court refused to make the decree, and this proceeding in mandate is brought to compel it to do so.

Section 1491 of the Code of Civil Procedure provides for the time notice to creditors shall be published, depending upon the value of the estate as less than or exceeding ten thousand dollars.

Section 1491a provides that “within thirty days after the first publication of notice to creditors, the executor or administrator must file or cause to be filed in the court a printed copy of said notice to creditors accompanied by a statement setting forth the date of the first publication thereof and the name of the newspaper in which the same is printed.”

Section 1492 declares that “after the notice is given, as required by the preceding section, a copy thereof, with the affidavit of due publication, or of publication and posting, must be filed, and upon such affidavit or other testimony to the satisfaction of the court, an order or decree showing that due notice to creditors has been given, . . . must be made by .the court.”

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It is quite clear that the legislature in enacting section 1491a intended to provide a means of giving additional and more effective notice to creditors so as to facilitate and aid them in presenting their claims against the estate. As the sections of the code stood prior to such enactment there was nothing which might appear on the files of the estate during the period while the time within which claims must be presented was running which would indicate to creditors when publication of notice was actually commenced or in what paper said notice was being published, or when or to whom such claims might be presented for consideration. These matters would only appear when the affidavit of publication was filed, and as the law specifies no time when this affidavit is to be filed, record information of these matters might be withheld for an indefinite time; the affidavit of publication might only be filed when the estate was- about to be closed and a decree establishing due notice to creditors was necessary to be obtained as a prerequisite to final distribution; the filing delayed for months and possibly years after the period of publication had expired. This want of any information in the files of the estate itself of when and where publication was being made and when and to whom claims should be presented, doubtless prompted the legislature to the enactment of section 1491a, which was intended to supply all this information by requiring that a copy of the published notice with a statement of the fact as to when publication began and in what paper should be of record in the estate within thirty days after the first publication. Parties interested in the estate whose right to act therein might be measured by lapse of time for the presentation of claims, and creditors whose claims required presentation within the given time would thus have early, direct, and full information by an inspection of the files of the estate and could act accordingly. With this section 1491a complied with parties interested would not be required to hunt up the whereabouts of the executor, administrator, or attorney of the estate, who might all be nonresidents of the county in which it was being probated, and whose particular places of

Dissent — Shaw

[747]

SHAW, J.,

dissenting.—I dissent. Section 1492 provides that upon the production of the affidavit of due publication of the notice to creditors, the court must make an order showing that due notice to creditors has been given. Section 2010 of the Code of Civil Procedure, provides that the affidavit may be mad-e by the printer of the newspaper, his foreman or principal clerk. It is obvious that the notice to creditors here referred to, the due publication of which must be proven by the affidavit, is the notice published in a newspaper not less than once a week for four weeks, as provided in section 1490 of the Code of Civil Procedure. The decision of the court is that notwithstanding the express and plain provisions of section 1492, the court need not make the order as there directed, and indeed must not do so, unless it is shown that another provision of the law has been complied with, a provision not contained in or referred to in section 1492, and not made a condition of or essential to a compliance therewith. The result is that the court holds that by enacting section 1491a, the legislature has amended section 1492 without re-enacting it or publishing it at length as amended, or referring to it in the title of the amending act, all of which is in direct violation of section 24, of article IY of the constitution of California.

It is true, this point is not made by either party. But our probate law is already too much complicated by unnecessary requirements and notices. Further essentials should not be imposed, unless the statute providing them is clear, direct, and valid, even if counsel fail to notice the defect. An act passed by the legislature without complying with these commands of the constitution is beyond its constitutional powers and void for any purpose. As the new section 1491a could not, in view of the constitutional prohibition, have the effect of amending section 1492 without re-enacting and publishing the latter at length, I conceive it to be our duty to hold that it does not qualify section 1492 at all, and that the court must make the order as there provided and directed, upon proof of the publication alone. If section 1491a is inoperative, it is the fault of the legislature.

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Synopsis

Opinion — Lorigan

LORIGAN, J.

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Dissent — Shaw

SHAW, J.,

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