Opinion
Page __
__ Cal.App.2d __ 236 P.2d 405 FREDRICKSON v. SUPERIOR COURT OF STATE, IN AND FOR CITY AND COUNTY OF SAN FRANCISCO et al. No. 15046. California Court of Appeals, First District, First Division Oct. 23, 1951.Hearing Granted Dec. 18, 1951.
Subsequent opinion 241 P.2d 541.
[236 P.2d 406] Sefton & Anderson, San Francisco, for petitioner.
Heller, Ehrman, White & McAuliffe, San Francisco, for respondents.
BRAY, Justice.
Petition for writ of certiorari to review an order of the Superior Court of the City and County of San Francisco granting a motion to vacate and set aside a decree of distribution.
Questions Presented.
The sole questions are whether the motion was treated by the parties and court as being one under section 473 of the Code of Civil Procedure, and if so, whether there was any evidence to support such a motion.
Facts.
After publication of notice to creditors by petitioner as administratrix of the estate of Robert E. Maschio, deceased, the real party in interest here, Carew & English, Inc., a corporation, within the time allowed by law and at the place designated in the notice to creditors, the office of petitioner's attorneys, filed its verified claim in the sum of $1,071 for the funeral expenses of the deceased. A purported approval of the claim by the administratrix appears upon its face. Petitioner claims this is a forgery. The claim was allowed by the court and filed. It has not been paid. Thereafter, petitioner filed her final account as administratrix and petition for distribution, in which she stated that all claims against the estate have been paid. No notice of rejection of the claim, or other action thereon, was sent Carew. On November 29, 1950, a decree settling the final account and ordering distribution was made and filed. In this the court found that all debts, expenses and charges of administration had been fully paid. On the same day a decree discharging petitioner as administratrix was made and filed. No appeal was taken from these decrees. On May 23, 1951, Carew filed a notice that on May 28 (one day less than six months from the granting of the decrees) the court would be moved to set aside the decrees on the grounds therein stated. On the date set the court granted the motion.
Herein referred to for brevity as 'Carew.'
Was the Motion Made Under Section 473, Code of Civil Procedure?
[236 P.2d 407] Carew concedes that the motion being made after the decrees had become final was too late unless it was made under section 473. The notice of motion gives no indication that the motion was to be made pursuant to that section. It states that the motion will be made upon the following grounds: (1) that the final account was not verified; (2) that it does not show all the claims filed or presented against the estate; (3) that Carew duly presented its claim as provided by law and the notice to creditors; that the claim is on file, approved by the administratrix and allowed by the court; (4) that it was not paid or otherwise acted upon and no notice of rejection given claimant; (5) on all the files, pleadings and papers herein; (6) on oral testimony to be adduced at the hearing; (7) that both decrees are void for the reasons above stated. (Obviously (5) and (6) above are not grounds of motion.) It is clear that the notice of motion is not framed under section 473. Carew contends, however, that the proceedings at the hearing bring the matter within the rule that where the court and counsel treat a motion, on hearing, as bringing inadvertence, surprise and excusable neglect before the court, and where counsel opposing the motion makes no objection to the sufficiency of the motion, it is deemed that counsel has waived the requirement that such grounds be stated in the notice of motion. Hecq v. Conner, 203 Cal. 504, 265 P. 180; Mann v. Pacific Greyhound Lines, 92 Cal.App.2d 439, 207 P.2d 105.
Unfortunately for Carew, the record of the proceedings in the probate court produced here fails to bring the matter within that rule. The transcript of the hearing of the motion to vacate shows that Carew's counsel opened the hearing by stating that the claim had been presented and no notice of rejection given; that they heard no more about it until they looked up the records and found that the decree of distribution had been entered; that the claim is on file, allowed by the court and apparently bearing the approval of the administratrix. He did not know how that happened. Counsel then stated 'at any rate' that the account was not verified and did not contain a list of the claims. Thereupon petitioner stated, 'I want to file a demurrer to this motion or petition, or whatever it may be, on the ground that the Court has no authority at this time to vacate or set aside the decree * * *.' He then started to discuss a case on the subject and the court interrupted to state, 'Well, if the account was not verified, that would be enough for me.' 'Argument and discussion' then ensued, not taken by the reporter. Carew called petitioner's attorney to the stand and proved the receipt of the claim by him as attorney for the administratrix; that no notice of rejection had been sent and that the claim had not been paid. The court then stated: '* * * even the six months would not bar you here--this is a fraud on the Court--it can be brought up at any time.' The witness explained that Carew was employed by the sisters of the deceased and he assumed they would pay the funeral bill. Petitioner was then called and stated that the signature on the approval of the claim was not hers; that her attorney had sent the claim to the sisters and that she assumed they had paid it. She also testified that she signed and swore to the account before a notary public.
So far as the record before us is concerned, there is nothing in it to bring the matter within the rule of the cases above mentioned. No showing of inadvertence, surprise or excusable neglect was made. No one representing Carew testified at the hearing, nor were any affidavits presented. It is obvious that Carew proceeded and the court acted on the theory that the order was void. Moreover, opposing counsel did not consent to the hearing of the motion; he expressly objected to such hearing.
Carew's attorney filed an affidavit in this court to the effect that prior to the filing of the notice of motion in question here he had filed an identical notice of motion setting the hearing for May 10, 1951; that on that date both sides appeared in court and due to the absence of the probate judge, the hearing was continued to June 4. A few days later it occurred to him that June 4 was more than six months from the entry of the decrees, and therefore beyond the period in which a motion [236 P.2d 408] under 473 could be made. Therefore he filed a new notice of motion setting the hearing for a date within that period, May 28; that on that date he stated to the court in the presence of counsel the reason for the second notice of motion, namely, that the original motion had been continued beyond the time in which a motion could be granted under section 473; that petitioner's counsel made no objection to the hearing nor to the fact that the motion was made on grounds not specified in the motion. Petitioner's attorney filed an affidavit that no testimony as to inadvertence, surprise or excusable neglect was offered at the hearing, and had it been he would have objected to it as not being within the grounds specified in the notice. At oral argument, Carew contended that his statement as to section 473 was during that portion of the proceeding not taken by the reporter, referred to as 'Argument and discussion.' It seems doubtful that the reporter would have so characterized grounds of a motion or would have omitted them from the transcript. However, the burden is on Carew to show that the motion as made was on different grounds than those set forth in the motion. This he has failed to do.
The decree was not void on its face. Lack of verification of the final account would not render the decree based on it void. See In re Staser, 84 Cal.App.2d 746, 191 P.2d 791, and cases there cited. Failure of the final account to show all claims filed is not jurisdictional and does not make the decree settling the account and of distribution void. Benning v. Superior Court, 34 Cal.App. 296, 167 P. 291. 'A claim which is not barred by the statute of limitations is not required to be rejected by the executor or administrator.' Pacific Gas & Electric Co. v. Elks Duck Club, 39 Cal.App.2d 562, 564, 103 P.2d 1030, 1032. The decrees not being void on their faces, could only be set aside by (1) appeal within the proper time; (2) a proper motion under section 473; (3) a motion for a new trial within the proper time; (4) under certain conditions by an independent suit in equity. King v. Superior Court, 12 Cal.App.2d 501, 56 P.2d 268. The record before us fails to show that court and counsel treated the motion as being under section 473 or that petitioner in any wise waived the requirement of a proper notice of motion. As said in Nason v. Superior Court, 39 Cal.App. 448, 452, 179 P. 454, 456. 'The motion to set aside the decree of discharge was not made for relief, under the provisions of section 473, Code of Civil Procedure, and the order may not be affirmed as one authorized thereby.' See also Westphal v. Westphal, 61 Cal.App.2d 544, 550, 143 P.2d 405. The court, therefore, had no power to vacate the decrees.
The order is annulled.
PETERS, P. J., and FRED B. WOOD, J., concur.