MacGowan v. Jones

HENSHAW, J.

This is an action brought by plaintiff upon a rejected claim against the estate of A. E. Maxey, deceased. The facts were stipulated. Under the stipulation, it appears that all the proceedings in the estate were regular; that notice to creditors to present their claims was duly published as required by law; plaintiff was in the state at the time of the first two publications of the notice in question, and did not leave the state until after the second publication; he returned to the state upon the sixteenth day of June, and upon the twelfth day of July following—more than one full month before the time for presenting the claim had expired —received actual notice that the administrator of the estate, under order of court, had published a notice to creditors of said estate. Plaintiff attended deceased as his physician during

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his last illness and knew of his death. The value of his services is not in dispute.

Section 1493 of the Code of Civil Procedure provides that “All claims arising upon contracts . . . must be presented within the time limited in the notice, and any claim not so presented is barred forever; provided, however, that when it is made to appear by the. affidavit of the claimant, to the satisfaction of the court, or a judge thereof, that the claimant had no notice as provided in this chapter, by reason of being out of the state, it may be presented at any time before a decree of distribution is entered.” The sole question for determination is whether plaintiff comes within the proviso of the remedial clause of the code section above quoted. And herein it is to be observed that no attack is made upon the legality or the sufficiency of the notice as given. In all respects it complied with the law. The proceeding being

in rem,

and the statutory requirements of the notice having been fully complied with, it is binding upon all the world, excepting those who are entitled to relief under section 1493. Is plaintiff such a person ? Appellant strongly insists that he is, and in argument declares that as the section says that a claimant who has had no notice

as provided in this chapter

is entitled to relief, and as appellant was out of the state during a part of the time of publication, as to him the statutory notice was incomplete and ineffective, because that statutory notice must be a publication of once a week for four successive weeks, while as to him, by reason of his absence, it was a publication of once a week for but two successive weeks. In this, however, we think there is a misconception of the meaning of the remedial provision under consideration. The words “as provided in this chapter” are used in reference to the substance of the notice, and not as to the manner of its publication. If, in truth, it has not been properly published, then it is void as to every claimant. But, in contemplation of the law, only those claimants who, by reason of their absence from the state, had no notice as provided in this chapter,—that is to say, had no notice of the time when the presentation of their claims would be barred,—are entitled to relief. Surely the statute was never designed to enable a man absent from the state but one day during the four weeks of publication, who after his return has received actual knowledge of the