People v. Osgood

The plaintiff commenced an action against the defendants to recover a judgment against the defendants as the representatives of two decedents who had executed a bail bond in a criminal ease. The plaintiff pleaded its claim in two separate counts. In one count it pleaded that it had presented its claim to the defendant executrices. In the other count it omitted all allegations regarding presentation. The defendants demurred to each count, both generally and specifically. The demurrers were

The plaintiff does not assert that the claims were presented within the times specified in section 1491 of the Code of Civil Procedure, but the plaintiff contends that the statute on the subject of times for the presentation of claims against the estate of deceased persons does not expressly include the state and therefore the state is not included. The defendants contend that the statute is written in such broad language that it applies to all persons, both natural and artificial, including the state.

Before we turn to the particular sections of the Code of Civil Procedure it is very necessary to construe the general body of the laws of which those sections are a part. That it is not the policy of this commonwealth not to be bound by any statute of limitations is made clear by certain enactments which date back to the first session of the state legislature. (Code Civ. Proc., sees. 315, 317, 345.) Moreover, it is the policy of this commonwealth that it will, even when it consents to be sued, claim the protection of certain statutes of limitation. (Stats. 1893, chap. 45; Stats. 1929, chap. 516.) As said in People v. Kings County Dev. Co., 48 Cal. App. 72 , 75 [ 191 Pac. 1004 , 1005] : “The general legislative policy of California is that the state shall be bound by its statute of limitations with respect to the bringing of actions for the enforcement of any and all such rights as may accrue to the state.” There is another proposition that is equally well settled. “As a general rule subject to certain exceptions in matters touching the sovereignty of the state, when a state, as plaintiff, voluntarily comes into court and invokes its aid, she is bound by all the rules established for the administration of justice between individuals and the suit is governed by the same rules as private suits. . . . The pleadings in an action by the state are in general governed by the ordinary rules of pleading. Thus the declaration or complaint must set forth such facts as constitute a cause of action or it will be demurrable. ...” (36 Cyc. 907, 909.)

If during the life of the decedents the bail bond had been forfeited and the action had been commenced, there is not a doubt but what under a certain set of facts the decedents would have been entitled to plead the statute of limitations.

Claims against the estates of deceased persons are provided for in the Code of Civil Procedure, sections 1490-1514. Section 1500 provides: “No holder of any claim against an estate shall maintain any action thereon, unless the claim is first filed with the clerk, or presented to the executor or administrator. ...” The language is very broad and when read in connection with the rest of the statutes germane to the subject it may not be said that the state is not expressly included.

The point has never been directly ruled upon in this state. In the state of Washington the statutes are very much the same as ours. The point was before the court in State v.

The plaintiff earnestly contends that the state is not included within the terms of the general language used in a statute. (Miller v. Pillsbury, 164 Cal. 199 , 204, 205 [Ann. Cas. 1914B, 886, 128 Pac. 327 ].) That proposition may be conceded, but it is beside the point. There is no statute which gives to the superior court sitting in probate the jurisdiction to entertain in behalf of this plaintiff or in behalf of any other litigant such a claim at such a time. Our statute commands that claims for debts "... due, not due, or contingent ...” be presented. (Code Civ. Proc., sec. 1490 et seq.) If the administrator complies with the statute and gives due notice, claims not duly presented are barred. The bar cannot be waived. (Harp v. Callahan, 46 Cal. 222 , 232.) If, nevertheless, a court allows the claim, its action is reversible error. (Morrow v. Barker, 119 Cal. 65 , 66 [ 51 Pac. 12 ].) No action may be maintained. (Code Civ. Proc., see. 1500.) Hence no court would have jurisdiction. (Modoc v. Superior Court, 128 Cal. 255 [ 60 Pac. 848 ].) If the administrator does not give due notice and does not comply with the statute the holder of a valid claim is given an action against him on his bond. (Code Civ. Proc., see. 1650.) But the section last cited contains a proviso to the effect that it does not cover claims “not due or contingent.” As to claims presented but not due or contingent, the statute provides a complete remedy. (Code Civ. Proc., sec. 1648.) The same remark may be made as to claims due. The administrator is authorized to pay in the following order: (1) funeral expenses; (2) the expenses of the last illness; (3) debts having preference by the laws of the United States; (4) judgments rendered against the decedent in his lifetime and mortgages and other liens in the order of their date; (5) all other demands against the estate. If the estate is insufficient to pay all the debts of any one class, each creditor

We find no error in the record.

The judgment is affirmed.

Nourse, Acting P. J., and Dooling, J., pro tem., concurred.