Gillespie v. Wright

Foote, C. This action was brought on a note which had been presented to the executrix above mentioned for allowance and been rejected by her. The appeal is from a judgment in favor of the defendant, and from an order refusing a new trial.

The points made are numerous, but we think that, upon the decision of those hereafter mentioned, this case is determinable in favor of the respondent. The claim was twice presented, and twice indorsed rejected by the executrix.

'•But it is claimed by appellant that there was no actual rejection on the first presentation, and therefore that the bar of the statute, under section 1498 of the Code of Civil Procedure, does not attach.

The finding of the trial court is opposed to this view, and, as we think, is supported by sufficient evidence.

It appears that on the first presentation the claim was actually rejected and so indorsed, and that the plaintiff’s attorney, deeming that it, as presented, was not perhaps sufficiently formal, again, at a later day, presented it to the attorney of the defendant for action by the executrix. The plaintiff’s attorney was not then, nor was he ever, told by the defendant’s attorney that the claim was informal, or that it would be considered as not having been before rejected, and formally presented for the first time.

The attorney for the executrix said the claim would he again rejected, but that he would present it to her again for action. While this shows a disposition to accommodate the presenter of the claim and give him the [171]benefit of his own legal view of the matter, it did not amount to a formal or apparent consent that the former rejection should be held as naught, and that the time might be extended for bringing the action on the rejected claim as first indorsed.

To determine the present contention in favor of the appellant upon the point under discussion would be to say “ that when a creditor has presented his claim and it has been rejected, he may again present his claim for the same demand, and thus avoid the bar or prolong the time within which he may commence suit.” (Temple, J., in concurring opinion in Steward v. Hinkel, 72 Cal. 191.) It was no fault of the defendant executrix or her attorney that the claim was not presented in a form in the first place which, upon after consideration by the plaintiff’s attorney, was not thought sufficient by the presenter thereof. As first presented, it was actually rejected. And there was no formal or apparent consent given that this rejection should be considered as not having been made by proper indorsement. We do not think that the conduct of the defendant or her attorney should be considered, under the facts here developed, as giving the plaintiff the right to suppose that the former rejection had been set aside. It still existed, and the effort to clinch the matter by another presentation was not suggested by them, nor was it apparently agreed in any way that the second should take the place of the first presentation. The responsibility in the premises rested solely with the plaintiff and his legal representative.