Johnston v. Superior Court of Napa County
Before: Temple
Synopsis
Estates of Deceased Persons—Publication of Notice to Creditors— Additional Notice—New Notice.—The judge, when ordering publication of notice to the creditors of deceased person, may direct additional notice to be given, and may do so afterwards within the period allowed for the presentation of claims; and if, when proof of publication is made, the judge determines that the publication has not given notice to the creditors, he may direct a new notice to be given, as though there had been no attempt to publish the notice, and, in such case, the time for the presentation of claims would begin to run only from the giving of the new notice.
Id.—Ordering Additional Notice After Expiration of Time—Mandamus—Where the court recognizes a publication already made as giving notice, though, in the opinion of the judge, not the best notice, he cannot, after the expiration of the time allowed for the presentation of claims after publication of the notice, extend the time for the presentation of claims by ordering additional notice, and, in such case, he will be compelled by writ of mandate to sign an order decreeing that the notice to creditors had been given.
Temple, J. This is an application for a writ of mandate to compel the superior court of Napa county to make a decree showing that due notice to creditors has been given in the above estate.
The order for the publication of the notice was made June 11, 1894, and directed its publication once a week for four weeks. The paper in which it was to be published was not designated.
The publication was made as directed in the Napa Daily Journal, the first publication being on July 12, 1894.
[667]The value of the estate was less than ten thousand dollars, and, accordingly, creditors were required in the notice to present their claims within four months after the first publication.
December 3, 1894, due proof of publication was filed in the probate court of Napa county and presented to the court, which was asked to decree that due publication of the notice to creditors had been made.
The court refused to make the order, not, however, objecting that the proof was insufficient, but because the judge thought the publication in the newspaper selected did not give sufficient notice.
In his answer to the petition herein the respondent makes the following statement as to his action in the matter:
“ That upon such showing the court was not satisfied that due notice had been given to the creditors of said James Eiley, deceased, and therefore announced that it believed it was its duty to cause additional notice to be given to the creditors of said deceased, especially any creditor who might live or reside in Pope valley; that said administrator was then and there questioned by the court concerning the place of residence of said deceased prior to and at the time of his death, and where he did business, and where his creditors would likely be; and the court, from said examination, was of the opinion that the creditors of said deceased, if any, would be residents of Pope valley and St. Helena. The court further believed, and so stated to said administrator, that, in the opinion of the court, said notice thus published in the Napa Daily Journal was a notice in form only, and did not give due notice to the creditors of said deceased; and the court believed that it was its duty to require additional notice to be given in the case, especially to any creditor who might live in Pope valley.
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