Summary
In Hentsch v. Porter, 10 Cal. 555, this Court said, all the justices concurring: " We think it clear that the failure to aver this presentment (of a claim against the estate of a deceased person to the administrator), not such a fatal objection to the complaint as to make judgment by default a nullity or reviewable on appeal."
Summary of this case from Chase v. EvoyOpinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing Granted 10 Cal. 555 at 562.
Appeal from the District Court of the Twelfth Judicial District, County of San Francisco.
A sufficient statement of the facts to understand the points decided, appears in the opinion of the Court. The case was first decided at the July Term, but a re-argument was subsequently had at the October Term.
COUNSEL:
The complaint in this case is radically defective, because:
1. The action is to foreclose a mortgage.
2. The mortgagee, at and before the commencement of the action, was dead.
3. It is not averred in the complaint that the claim sought to be enforced in this action had been presented to the executor or administrator, and rejected by him.
4. It is not averred in the complaint that there was an administrator.
Without such an averment the action could not be maintained, and the Court had no jurisdiction to render judgment. (Ellisen v. Halleck , 6 Cal. 386; Harwood v. Marye , 8 Cal. 580.)
The statute is, " no holder of any claim against an estate shall maintain an action thereon unless," etc.
Now, if the statute is prohibitory, as is said in Ellisen v. Halleck, the Court below had no power to render judgment on this complaint, and when an express and prohibitory statute is violated by the Court (or Clerk) in perfecting judgment, such judgment should be reversed. (1 Cal. 478; McCann v. County of Sierra , 7 Cal. 121.)
But it may be said that this Court will presume that proper proof was offered in the Court below to authorize and uphold the judgment. We answer, " Proof of that which is not alleged in the declaration will not authorize a judgment." (Richardson v. Talbot, 2 Bibb, 382.) " Nor a decree in a Court of Equity." (Same pages; Palmer v. Lorillard, 18 John. 352.) In Connor v. Price, (1 Bibb,) the Court say: " The testimony must be limited to the points made in the pleadings, and, so far as it goes to support any point not contested or brought into view by the pleadings of the parties, it is irrelevant, and ought to be rejected."
" Evidence, to be legal, and to merit the attention of a Court, must be relevant, and illustrative of some point made by the pleadings." (Moreland v. Prather, Id. 316; McKinney v. McConnell, Id. 242.)
This question can be raised by appeal. In Raynor v. Clarke, (3 Code Rep. 230,) the Supreme Court of New York held that an appeal might be taken from a judgment entered by the Clerk for want of an answer, on the ground that the complaint did not state facts sufficient to constitute a cause of action.
And such an appeal is expressly sanctioned by this Court. (Voorhies' Code, Note to § 348; Dorente v. Sullivan , 7 Cal. 279; Stevens v. Ross , 1 Cal. 97; 2 Cal. 86; and see a decisive case before codes became popular, 18 John. 353, 354.)
If no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the Court, and the objection that the complaint does not state facts sufficient to constitute a cause of action. (Pr. Act, § 45; 2 Cal. 86, 87; 3 Seld. 464-5.)
Stow and Brown, for Appellant.
Janes, Doyle, Barber & Boyd, for Respondents.
1. We contend that there is no error apparent on the record. The decision in the case of Ellissen v. Folsom's Executors is not an authority decisive of the question presented by this appeal. The decision there was on a demurrer to the complaint, in consequence of the omission of any averment of presentment of the demand to the executor.
In the present case, the defendants have allowed judgment to be taken against them, without objection, which they now seek to set aside, because it does not expressly appear thereon that the note and mortgage were presented to the administrator before suit brought.
It is familiar law, that many defects or omissions in pleading to which objection might have been taken by demurrer, are deemed waived after judgment; every presumption and intendment being in favor of the correctness of the judgment. (Stephen on Pl. 147, 149; Gould's Pl. 496; 1 Barb. Ch. Pr. 395.)
The omission to present does not go to the " cause of action," which is sufficiently stated on the record, but to the regularity of the commencement of the suit. (1 Sand. R. 228.)
2. After judgment, it will be presumed that all the essential preliminaries to a right of action were observed and complied with.
The Supreme Court of Texas, " whose statutes on the settlement of the estates of deceased persons closely resemble our own," has decided this very point adversely to appellant's case.
In Dawzey v. Swinney, (7 Tex. 624,) the plaintiff commenced proceedings in the Probate Court to enforce the payment of a note and mortgage which he held against the decedent. There was no averment that the claim had been presented to the Judge for his approval, as required by the statute, antecedent to the application for the sale of the mortgaged property.
The Court say: " That this is essential to support the claim is admitted; but, nevertheless, in the Probate Court, it is not a necessary averment, because it may be proven, though not averred."
JUDGES: Burnett, J., delivered the opinion of the Court. Field, J., concurring.
OPINION
BURNETT, Judge
The following opinion was delivered, on re-argument, by Baldwin, J.--Terry, C. J., and Field, J., concurring.
The appellant contends that the case of Ellissen v. Halleck (6 Cal. 386,) is decisive of this case. There, however, the objection was taken by demurrer. Here the record shows no answer by the administrator. On the contrary, a stipulation appears in the record, signed by the Attorney for the plaintiff, and Nathan Porter, " Attorney for the widow," consenting to a decree upon certain terms; and the decree was entered accordingly. We think it clear that the failure to aver this presentment is not such a fatal objection to the complaint as to make judgment by default a nullity, or reviewable on appeal. The administrator, it is true, could only be sued in a given event; but it is, to say the least, very questionable, notwithstanding the ruling in Halleck v. Ellissen, whether this matter be not matter of abatement; at all events, we feel no hesitation in holding, in cases where the administrator does not set up his privilege by demurrer or answer, but suffers judgment to go by default, that this is a confession that he is properly suable. Wherever the subject-matter of the plea or defense is, that the plaintiff cannot maintain any action at any time, whether present or future, in respect of the supposed cause of action, it may, and usually must, be pleaded in bar; but matter which merely defeats the present proceeding, and does not show that the plaintiff is forever concluded, should, in general, be pleaded in abatement. (1 Chitty Pl. 446.)
The case of J. L. Hunt v. Porter, administrator, decided at the October Term, 1856, sustains this view. The Court say: " The assignment of error here is not supported by the decision of Ellissen v. Folsom's Executors, at this term. In that case, there was a demurrer to the declaration, and we held the demurrer to be well taken. In this case, the objection to the declaration comes too late. It must be presumed, in favor of sustaining the judgment of the District Court, that proof was made of the disallowance of the claim by the administrator, which supplied the want of the averment to that effect.
Judgment affirmed.
CONCUR
FIELD
Field, J. I concur in the judgment of affirmance, but upon grounds different from those stated in the opinion of Mr. Justice Burnett.