Majority
p. 574[No. 8,279. Department Two. September 3, 1884.] SECURITY SAVINGS BANK, Respondent, v. SARAH CONNELL, Administratrix of the Estate of John Connell, Deceased, Appellant.
Headnote
POBEOLOSUBE—PBESENTATION OF MoBTGAGE CLAIM TO ADHINISTBATOB— PLEADING.—Since the amendment of section 1500 of the Code of Civil Procedure, in 1876, it is not necessary to present a claim secured by mortgage, to an administrator for allowance or rejection, when all recourse against the property of the estate, other than that mortgaged, is waived; and therefore such presentation need not be alleged in an action to foreclose the mortgage.Appeal from a judgment of the Superior Court of San Luis Obispo County.
Action to foreclose a mortgage. The facts are stated_in the opinion of the court.
W. H. Spencer, for Appellant.
E. Jackman, and McD. JR. Venable, for Respondent.
The claim being one secured by mortgage, and the plaintiff in its complaint having expressly waived all
p. 575
recourse against any property of the estate other than the mortgaged premises, it was not necessary to present such claim to the administratrix for allowance or rejection. (§ 1500, Code Civ. Proc. as amended in 1876.) Therefore it was not necessary that plaintiff should set forth in its complaint any such presentation.
Judgment reversed and cause remanded with directions to overrule the demurrer of the administratrix, with leave to her to answer the complaint within ten days after notice of the order overruling said demurrer.