Levy v. National Automobile & Casualty Insurance

WHITE, J. This is an appeal from a judgment of dismissal entered after a demurrer to plaintiff’s complaint was sustained, the plaintiff declining to amend.

[633]The contents of the complaint, so far as is necessary to set forth here, are as follows: That Carrie F. Levi died testate in Los Angeles County and Agnes Levi was appointed special administratrix of her estate on February 15, 1943, and thereafter, on October 30, 1944, was appointed administratrix with the will annexed; that defendant corporation was the surety on her bond. “That the testate decedent was during her lifetime indebted to the plaintiff herein in the principal sum of $2,000.00 and subsequently interest thereon accrued in the sum of $415.00; whereupon the petition on or about June 8th, 1945 was duly presented to said administratrix seeking the transfer of $2,415.00 from said estate to this plaintiff in pursuance thereof. The principal sum of $2,000.00 to be charged against the residue of the estate and the accrual of $415.00 to be charged against the corpus of the estate. The said administratrix, having defaulted thereon, an action thereon was began in this court, entitled A. F. Levy, plaintiff (and also the within plaintiff) v. Agnes Levi as Administratrix of Carrie F. Levi (aforesaid) No. 504367 and thereafter said Administratrix acknowledged her default and in said action on Dec. 9th, 1945 [1946] her default in last said action was duly entered in the sum of $2,415.00 plus $28.50 costs or total sum of $2,443.50.”

By a second cause of action it is alleged: “That this plaintiff on or about the 16th day of April, 1945, filed in said estate matter, and also with Agnes Levi as General Adminstratrix, his creditors additional claim, as per vouchers attached thereto in the sum of $140.73 who thereafter admitted and acknowledged the correctness of said amount but refused to pay to this plaintiff any part thereof or claim that any part thereof had been paid or otherwise satisfied. That a final settlement of the Adminstratrix’s account and Decree of Distribution was made on August 29th, 1945 and a distribution subsequently was made without this plaintiff’s creditor claim included therein, and the said general Adminstratrix having failed to give notice to creditors as prescribed by law, which this plaintiff states herein as an issuable fact and not a conclusion of law.”

Defendant bonding company demurred upon the grounds that the complaint contained no allegation in either cause of action that the claim sued on was allowed or rejected by the adminstratrix or the probate judge as required by sections 710 and 711 of the Probate Code; that the first cause of action