United States Fidelity & Guaranty Co. v. Keck

SCHOTTKY, J. pro tem. Respondent commenced an action against appellant administrator upon a claim presented against the estate of Lizzie B. Keek, deceased, which claim had been rejected by appellant. The only defense set up by appellant administrator was that the affidavit supporting the claim was not in the form required by section 705 of the Probate Code. The trial court found the claim sufficient, adequate and proper as to form and rendered judgment in favor of respondent. This appeal is from said judgment.

The claim sued upon set forth as the item of indebtedness the following:

“1942

“May 28, Judgment entered in the Superior Court of the State of California in and for the County of Alameda in that certain action entitled ‘United States Fidelity and Guaranty Company, a corporation, plaintiff vs. Lizzie B. Keek, defendant’—Proceeding No. 166384 and bearing date of the 28th day of May, 1942, and by reference made a part hereof; that no part of said judgment has been paid or satisfied and the whole thereof is due, owing and unpaid in the sum of Bight Thousand Seven Hundred Fifty-nine and 84/100 Dollars $8,759.84 With interest thereon at the rate of 7% per annum from and after the 28th day of May, 1942.”

The affidavit in support of the claim reads as follows:

“State of California )

City and County of San Francisco.} SS.

“Horace W. B. Smith, being first duly sworn, deposes and says:

“That the United States Fidelity and Guaranty Company, whose foregoing claim is herewith presented to the administrator of said deceased, is a corporation; that affiant is an officer of said corporation, to wit: Resident Secretary, and that he has knowledge of and is familiar with the matters as stated in said claim; and for that reason he makes this affidavit on behalf of said United States Fidelity and Guaranty Company, a corporation; that the amount of said claim is, to wit: The sum of Bight Thousand Seven Hundred Fifty Nine and 84/100 Dollars ($8,759.84) with interest thereon at the rate of 7% per annum on and after the 28th day of May, 1942, which is wholly unpaid and unsatisfied, and the same and the whole thereof is now justly due, owing and un[830]paid, and that there are no offsets to the same to the knowledge of said affiant.