Opinion
2-27-1953
BERGER v. O'HEARN. * Civ. 15260.
Samuel L. Fendel, Sol Silverman and James A. Toner, San Francisco, for respondent.
BERGER
v.
O'HEARN. *
Feb. 27, 1953.
Rehearing Denied March 28, 1953.
Hearing Granted April 27, 1953.
William Berger, in pro. per.
W. L. A. Calder and Abraham Glicksberg, San Francisco, of counsel for appellant.
Samuel L. Fendel, Sol Silverman and James A. Toner, San Francisco, for respondent.
PATTERSON, Justice pro tem.
Appeal from a judgment rendered after sustaining a demurrer without leave to amend.
The plaintiff filed an action to recover attorney's fees on December 6, 1945. The defendant died on July 20, 1947. Letters of Administration were issued on August 4, 1947, and the plaintiff by order of the court was permitted to continue the action against the administrator. Plaintiff filed a creditor's claim in the estate on February 3, 1948 attaching to the claim a copy of his complaint in the action. The administrator rejected the claim and the plaintiff received written notice of rejection on February 20, 1951. On April 18, 1951, on motion of the administrator, the court dismissed the action under the provisions of Code of Civil Procedure Section 583 upon the grounds that it had not been brought to trial within five years. See Berger v. McMahan, Can.App., 253 P.2d 543. Plaintiff on the same day filed the present action on the same alleged indebtedness which purported to state a cause of action upon the rejected claim. The court sustained defendant's demurrer without leave to amend upon the grounds that the action was barred by the statute of limitations.
The present action was admittedly filed more than five years after the indebtedness is alleged to have been incurred. Plaintiff seeks to excuse this delay on the ground that the statute of limitations was tolled during the period between the filing of his creditor's claim on February 3, 1948, and notice of its rejection on February 20, 1951. The statute of limitations is a general statute and must be applied generally and in all cases where exception to its operation is not specifically made. (11b Cal.Jur. 360.) Where the statute has commenced to run, the subsequent death of the party bound does not toll the statute in the absence of an express provision otherwise in the statute. Davis v. Hart, 123 Cal. 384, 55 P. 1060. Neither the death of the party bound nor the failure of the administrator of his estate to act upon the claim will extend the general statute of limitations. The only exception is that provided in Code of Civil Procedure, Section 353, which provides that if a person against whom an action may be brought dies before the time limited for its commencement an action may be filed within one year after the appointment of the legal representative. As stated in McMillan v. Hayward, 94 Cal. 357, 360, 29 P. 774, 775, 'The statute had therefore commenced to run, and would continue to run, unless [the case] is brought within some express exceptions of the statute; and death is not made such, further than that the suitor may in such case commence his action within one year after letters are issued. This action was commenced neither within four years after the maturity of the note, nor within one year after letters were issued. * * * The evident purpose of section 353 is to secure to a party who has a cause of action against a decedent one year after the appointment of a legal representative within which to bring his action. This may or may not have the effect of extending the time.'
Probate Code Section 712 provides that if a claim is not acted upon within ten days after filing, the claimant at his option may deem it rejected. The failure to act upon a claim therefore does not foreclose a claimant from filing an action after the tenth day and thus tolling the statute of limitations.
Barclay v. Blackinton, 127 Cal. 189, 59 P. 834, is directly in point here. In that case the decedent had executed a promissory note in favor of plaintiff. Prior to the expiration of the statute of limitations the maker died. An administrator was appointed and a claim was duly presented against the estate. The claim was not acted upon and more than one year after the appointment of the administrator and after the general statute of limitations had expired an action was filed upon the claim. In holding that the action was barred the court said, 127 Cal. at page 194, 59 P. at page 835 'It has been many times decided by this court that, when a claim is duly presented and allowed by the administrator and the judge, it stops the running of the statute. It has never been held that the mere presentation of it has the same effect.' The court further cited, 127 Cal. at page 194, 59 P. at page 835 with approval the following language in Reitzell v. Miller, 25 Ill. 53, 'It was not the design of the general assembly that the filing of the claim should arrest the general statute of limitations, which had previously begun to run, nor to prevent it from afterwards running upon a claim not due at the time of its presentation. The object of this section is to facilitate and produce speedy settlement of estates of deceased persons, and it could not have been the design to give creditors an unlimited period of time within which to establish the justice of their claims after they had been exhibited in the probate court. Such a construction would defeat the manifest intention of the enactment.' This rule was followed in Dodson v. Greuner, 28 Cal.App.2d 418, 82 P.2d 741.
Plaintiff next contends that the only limitation upon the filing of an action upon a claim which has been timely presented is that set forth in Probate Code Section 714. That section provides that where a claim is rejected the claimant must bring his action within three months after receipt of written notice of rejection. The same contention was made in Barclay v. Blackinton, supra, and the decision in that case in our opinion is controlling here. The provisions of Probate Code Section 714 were at that time found in Code of Civil Procedure Section 1498. In rejecting this contention the Supreme Court said, 127 Cal. at page 193, 59 P. at page 835, 'It is said that under Code Civ.Proc. § 1498, the plaintiff had three months after the claim was formally and officially rejected by the administrator in which to bring his action. We do not so construe the statute. The section may shorten, but cannot be held to lengthen, the general statutes of limitations. The special limitations of time within which suit must be brought against the estates of deceased persons are called in many states statutes of nonclaim, or of short or special limitation. These limitations exist independent of and collateral to the general law of limitations.' (Emphasis added.) The plaintiff argues that the rule laid down in Barclay v. Blackinton, supra, no longer applies because of certain amendments to the code section. The amendments provide that when a claim is rejected notice of rejection must be given in writing and that in event suit is filed within ten days thereafter the plaintiff must give notice of the suit to the executor or administrator. The amendments would in no wise affect the ruling as announced by the court.
Plaintiff has cited the following cases in which the action was filed either within the period of the general statute of limitations or the period as extended by Code Civ.Proc. Section 353: Estate of Garnett, 126 Cal.App. 344, 14 P.2d 572; Smith v. County of San Mateo, 57 Cal.App.2d 820, 135 P.2d 372; Thayer v. Fish, 49 Cal.App.2d 618, 122 P.2d 358; Estate of Wilcox, 68 Cal.App.2d 780, 158 P.2d 32; Keeler v. Baird, 48 Cal.App. 29, 191 P. 563. These cases are not in point. Here the action was filed more than five years after the indebtedness was incurred and seventeen months after the issuance of letters of administration.
It is urged that the court erred in not permitting the plaintiff to amend the complaint. He does not point out in what respect it could be amended. It was not an abuse of the court's discretion to sustain the demurrer without leave to amend where the record disclosed that the action was barred by the statute of limitations, and therefore the objection to it could not be obviated.
The judgment is affirmed.
NOURSE, P. J., and DOOLING, J., concur. --------------- * Subsequent opinion 264 P.2d 10.