Opinion
11-2-1956
Clarence RADAR, Walter J. Henry, Catherlne Henry and Jacob's Ambulance Service, a fictitious firm composed of Walter J. Henry and Catherine Henry, Plaintiffs and Appellants, v. Alpha C. ROGERS, as Administratrix of the Estate of George W. Rogers, Deceased, Defendant and Respondent.* Civ. 21612.
Gray, Glass & Allen, Gardena, for appellants. Ball, Hunt & Hart, Long Beach, for respondent.
Clarence RADAR, Walter J. Henry, Catherlne Henry and Jacob's Ambulance Service, a fictitious firm composed of Walter J. Henry and Catherine Henry, Plaintiffs and Appellants,
v.
Alpha C. ROGERS, as Administratrix of the Estate of George W. Rogers, Deceased, Defendant and Respondent.*
Nov. 2, 1956.
Rehearing Denied Nov. 26, 1956.
Hearing Granted Dec. 24, 1956.
Moore, P. J., dissented.
Gray, Glass & Allen, Gardena, for appellants.
Ball, Hunt & Hart, Long Beach, for respondent.
ASHBURN, Justice.
Appeal from judgment for defendant entered upon sustaining without leave to amend her demurrer to plaintiffs' second amended complaint. Defendant is administratrix of the estate of George W. Rogers, deceased, and is sued as such. The action is based upon alleged negligence of decedent in driving his automobile. Plaintiff Radar sues for personal injuries and plaintiffs Henry seek recovery of damages to their automobile ambulance which was being driven by Radar at the time of the accident.
The allegations of the second amended complaint, plus judicial notice of the contents of the file in this case, disclose the following situation. The accident occurred on December 15, 1952, and Rogers died the same day. The original complaint was filed on March 11, 1953. The second amended complaint alleges appointment of defendant as administratrix on March 10, 1954, the fact of her qualifying and acting in such capacity, the presentation of claims against the estate by the respective plaintiffs on August 12, 1954, and their rejection on August 20, 1954. The original complaint was filed a year before any personal representative of Rogers' estate was appointed; it made no averment that any such appointment had been made, and named as defendants 'John Doe and Jane Doe, as Administrator and/or Administratrix of the Estate of George Rogers, Deceased, and Doe's One To Ten.' The only allegation concerning a personal representative is 'that the defendants John Doe and Jane Doe are sued herein as Administrator and/or Administratrix of the Estate of George Rogers, deceased, for the reason that the true name of the administrator and/or administratrix is unknown to the plaintiffs at this time.' Of course there was no allegation of presentation or rejection of claims on behalf of plaintiffs. Appellants' opening brief says: 'A copy of the summons and complaint was not served at that time for the reason that there was no representative of said estate to be served.' Respondent's brief confirms this fact.
A first amended complaint was filed on February 21, 1955. It named as defendants, 'Alpha C. Rogers, as Administratrix of the Estate of George W. Rogers, Deceased; Doe One through Doe Ten,' and alleged the appointment and qualification of Alpha C. Rogers, as administratrix, and her acting in that capacity. As appears from the later (second amended) complaint, plaintiffs had presented claims on August 12, 1954, which were rejected on August 20, 1954. But the first amended complaint contains no allegation on the subject. This pleading was filed more than three months after the rejection of the claims, i. e., six months and one day. Defendant promptly demurred, generally and specially, raising the point that there was no averment concerning presentation of claims. The demurrer was sustained with ten days to amend. The second amended complaint was filed on April 4, 1955, some seven and one-half months after rejection of the claims. It affirmatively discloses that fact, giving the dates of appointment of administratrix, presentation of claims and rejection of same. Defendant, on April 13, 1955, demurred to this complaint and raised the point that the suit was too late because not brought within three months after rejection of claims. The demurrer was sustained without leave to amend, and hence the judgment from which the instant appeal is taken.
The second amended complaint presents a claim which on its face is barred by § 707 and § 714, Probate Code. It there was any excuse for plaintiffs' failure to sue within three months after rejection of their claims it was incumbent upon them to allege it. Bass v. Berry, 51 Cal. 264, 265; Sullivan v. Shannon, 25 Cal.App.2d 422, 427-428, 77 P.2d 498; 16 Cal.Jur. § 215, p. 621. The demurrer was properly sustained, but the question whether leave to amend should have been denied requires that cognizance be taken of the filing and contents of the preceding complaints, especially because of appellants' reliance upon Security-First Nat. Bank v. Bennett, 17 Cal.App.2d 641, 62 P.2d 798, and Bemmerly v. Woodward, 124 Cal. 568, 57 P. 561.
Those cases hold that presentation of a claim which has been filed within the statutory period, but after suit brought, may be alleged in a supplemental complaint, and that objection to this mode of procedure raises a question of prematurity of action which is a matter of abatement, a plea that is waived unless interposed at the earliest opportunity. The Bemmerly opinion adds this significant statement which is pertinent at bar: 'If, however, the time for the presentation of claims had wholly elapsed before or after suit brought, and the claim had not been presented, it would have been a different matter. Then the claims would be forever barred, and it would be both the privilege and the duty of the executrix to urge the point. And she would be entitled, as matter of right, to file a supplemental answer, if the defense had accrued after the issues had been made up.' 124 Cal. at page 575, 57 P. at page 564. Likewise it should be said here that failure to sue within the statutory time forever bars the claim and it is the duty of the administratrix to urge the point.
Appellants, in order to bring themselves within the doctrine of the cases holding that a plea of premature action sounds in abatement and must be promptly raised, are forced into reliance upon the original complaint, because both the first and second amended complaints were filed more than three months after rejection of their claims.
It should be recognized that the original complaint in this case was no complaint at all, a complete nullity. It purports to sue 'John Doe and Jane Doe, as Administratrator and/or Administratrix of the Estate of George Rogers, deceased.' It is not alleged that there is any such personal representative in existence. The complaint merely says: '[T]hat the defendants John Doe and Jane Doe are sued herein as Administrator and/or Administratrix of the Estate of George Rogers, deceased, for the reason that the true name of the administrator and/or administratrix is unknown to the plaintiffs at this time.' This complaint was filed on March 11, 1953, and it appears that no personal representative was in existence until Alpha C. Rogers was appointed administratrix on March 10, 1954.
It is fundamental that a party to an action must be a living, natural person, or some legal entity recognized by the law. In Tanner v. Best's Estate, 40 Cal.App.2d 442, 445, 104 P.2d 1084, 1086, this court held that an action against 'Estate of John L. Best' would not support a judgment in favor of plaintiff for the reason that an estate is not a cognizable entity which can be sued. At pages 444-445 of 40 Cal.App.2d, at page 1086 of 104 P.2d it is said: 'It is fundamental that before an action can be instituted in the superior court there must be a party plaintiff and a party defendant. Code Civ.Proc., title III, part 2, § 367 et seq. In the case at bar there is no defendant before the court. * * * While Attorney Ball was named as a defendant there is nothing to indicate that he had any interest in the estate and he emphasized that fact by filing his disclaimer in the action which left as a defendant only the 'Estate of John L. Best'. We thus have a civil action with a real plaintiff asserting a real cause but without a defendant against whom a judgment could be entered. * * * But we find no provision of said code authorizing the prosecution of an ex parte action for establishing personal property rights as against the possible claims of others. The 'estate' of a decedent is not an entity known to the law. It is neither a natural nor an artificial person. It is merely a name to indicate the sum total of the assets and liabilities of a decedent, or of an incompetent, or of a bankrupt. 11 Cal.Jur. 79. In order for a civil action to be prosecuted, there must be some existing entity aimed at by the processes of the law, and against whom the court's judgment will operate.' At page 446 of 40 Cal.App.2d, at page 1087 of 104 P.2d: 'Although the evidence presented on behalf of plaintiff is impressive, we find it impossible to invoke the support of section 4 1/2 of article VI of the Constitution because we have not before us the parties who are entitled to resist the demands of plaintiff. The judgment is reversed with instructions to dismiss as to 'The Estate of John L. Best, sometimes known as John L. Bender'.' This case was followed in Estate of Bright v. Western Airlines, 104 Cal.App.2d 827, 828-829; 232 P.2d 523, and cited with apparent approval in Johnston v. Long, 30 Cal.2d 54, 63, 181 P.2d 645. See also, 2 Witkin California Procedure, p. 1002, § 25; 67 C.J.S., Parties, p. 946, § 30; 39 Am.Jur. § 4, p. 852; Mortimore v. Bashore, 317 Ill. 535, 148 N.E. 317, 319; McPherson v. First & Citizens Nat. Bank, 240 N.C. 1, 81 S.E.2d 386, 397; Cutler v. Winfield, 241 N.C. 555, 85 S.E.2d 913, 915; St. Paul Typothetae v. St. Paul Bookbinders' Union, No. 37, 94 Minn. 351, 102 N.W. 725, 726. The original complaint at bar not only failed to name any existing entity as defendant, but it was never served upon anyone.
The Supreme Court in Bank of Italy Nat. Trust & Sav. Ass'n v. Bentley, 217 Cal. 644, 658, 20 P.2d 940, 945, after ruling that the holder of a trust deed note must first exhaust the security before resorting to the personal liability of the trustor, said: 'Plaintiff contends that under the circumstances this action must be deemed one to 'keep the obligation of the note alive' until it could sell under the deed of trust. * * * Moreover, it is elementary that under our system there is no such thing as filing an action to keep an obligation alive, unless at the time of filing the complaint a cause of action existed.' No cause of action existed at the time of filing the original complaint in the case at bar, because presentation and rejection of a claim against a decedent's estate is of the essence of an accrued cause of action. Burke v. Maguire, 154 Cal. 456, 462-463, 98 P. 21; Morrison v. Land, 169 Cal. 580, 585, 147 P. 259; Tropico Land & Improvement Co. v. Lambourn, 170 Cal. 33, 41, 148 P. 206; Estate of Wilcox, 68 Cal.App.2d 780, 785, 158 P.2d 32. When the cause of action came into being plaintiffs waited too long before asserting it.
If the matter be viewed from the standpoint of abatement on account of prematurity of the action the result is the same. Kelley v. Upshaw, 39 Cal.2d 179, at page 187, 246 P.2d 23, at page 27, in discussing this subject, says: 'Thus, although a timely plea in abatement, properly proved, requires judgment for the defendant, it is an objection which may be waived if not seasonably urged.' (Emphasis added.) Various authorities, such as Fireman's Fund Indem. Co. v. Knorr, 117 Cal.App.2d 761, 256 P.2d 1005, deal with a situation in which the defendant has failed to promptly raise the point that the action was premature in whole or in part. That case is clearly distinguishable from the situation at bar. Although the plaintiff did not know it, letters of administration upon Knorr's estate had been granted four days before his suit was filed; thus there was a real defendant who was sued under a fictitious name. After suit filed, but within the statutory period, plaintiff presented a claim against the estate, it was rejected and those facts were set forth in an amended complaint. This brings the case within the same category as Security-First Nat. Bank v. Bennett, supra, 17 Cal.App.2d 641, 62 P.2d 798, and Bemmerly v. Woodward, supra, 124 Cal. 568, 57 P. 561. When this amended complaint was filed defendant administrator answered without suggesting any matter of abatement. That was first brought forth by way of amended answer which was presented at the opening of the trial on May 24, 1951; the amended complaint having been filed on October 31, 1950, this delay was held to constitute a waiver of the claim of prematurity.
The instant record shows that the original complaint was never served; that therefore the first knowledge of plaintiffs' claim that the administratrix had was when it was presented to her on August 12, 1954. She promptly rejected it and when the first amended complaint was filed on February 21, 1955, she appeared by demurrer and raised the point of failure to file a seasonable claim, both by general and special demurrer. When the second amended complaint was filed on April 4, 1955, it showed on its face that the claim had been rejected on August 20, 1954, and was therefore barred by § 714, Probate Code. The administratrix promptly demurred and raised the point by general demurrer and attached memorandum of authorities. A general demurrer is sufficient for the purpose according to Burke v. Maguire, supra, 154 Cal. 456, 463, 98 P. 21. But if the rule be deemed modified by Kelley v. Upshaw, supra, 39 Cal.2d 179, 246 P.2d 23, to the extent of requiring a special plea, the demurrer at bar fulfilled that prerequisite. There was no delay whatever on the part of the administratrix; she raised the question of prematurity at the first opportunity and persisted in that position. Under the Kelley v. Upshaw case she was entitled to the judgment which she received.
It is suggested that a plea in abatement based upon prematurity of the action cannot prevail if the ground for abatement has ceased to exist before presentation of that plea. While that seems to be true of other grounds of abatement, such as failure to file a fictitious firm name certificate, Rudneck v. Southern California M. & R. Co., 184 Cal. 274, 281-282, 193 P. 775, that rule does not apply when the ground of abatement is prematurity of action in the sense that the cause has not yet accrued and the plea is made promptly and before trial. 1 C.J.S., Abatement and Revival, § 85, p. 126, says: 'If the objection shows not merely that the action was prematurely brought, but that there was no right of action at all, it is a matter in bar and not in abatement.' Turney v. Shattuck, 96 Cal.App. 590, 596, 274 P. 442, 445: "Furthermore, since a supplemental pleading is proper only in aid of the case made by the original complaint, relief cannot be granted upon a supplemental complaint, where the proof shows that the plaintiff had no cause of action when his original complaint was filed. 'If a party has no cause of action at the time of the institution of his action he cannot maintain it by filing a supplemental complaint founded on matters which have subsequently occurred.' (Wittenbrock v. Bellmer, 57 Cal. 12; Gordon v. San Diego, 108 Cal. 264 ; Hill v. Den, 121 Cal. 42 .)" (See also, 2 Witkin on California Procedure, § 615, p. 1631.) Kelley v. Upshaw, supra, 39 Cal.2d 179, at page 187, 246 P.2d 23, at page 27, while emphasizing the necessity of a prompt plea of prematurity, makes it clear that 'a timely plea in abatement, properly proved, requires judgment for the defendant.' That is the situation at bar.
It would be a strange doctrine that would enable a claimant to wait more than three months after rejection of his claim and then, after bringing a belated suit, to successfully contend that the defect in his complaint was cured because, forsooth, he had brought an action against some nonexistent entity prior to the time that he ever had or asserted a claim.
Judgment affirmed.
FOX, J., concurs.
MOORE, Presiding Justice.
I dissent. It must be remembered in this case that a claim was properly filed against the estate within the six months allowed by the Probate Code, and was rejected. The only possible ground for dismissing this action is that a 'suit' was not on file within three months of the rejection of the claim as is required by Probate Code section 714.
Actually, a 'suit' was on file against 'John Doe and Jane Doe, as Administrator and/or Administratrix of the Estate of George Rogers, Deceased, and Doe's One To Ten.' To be sure, the suit was premature: premature because no administrator had yet been appointed to represent the decedent; premature because no claim had yet been filed against the estate. But appellants' cause of action had arisen. Their right to freedom from interference with their bodily well-being had been wrongfully invaded by decedent tort-feasor. The question is whether the law must apply in this case harshly to prevent redress for their injuries.
The majority fails to meet the point that a plea that a suit is premature is dilatory and in abatement. Kelley v. Upshaw, 39 Cal.2d 179, 186, 246 P.2d 23; Bollinger v. National Fire Ins. Co., 25 Cal.2d 399, 405-406, 154 P.2d 399; Seches v. Bard, 215 Cal. 79, 81-82, 8 P.2d 835; Verbeck v. Clymer, 202 Cal. 557, 562, 261 P. 1017; Kazanteno v. California-Western States Life Ins. Co., 137 Cal.App.2d 361, 377, 290 P.2d 332; Archibald v. Iacopi, 120 Cal.App.2d 666, 669, 262 P.2d 40; Fireman's Fund Indemnity Co. v. Knorr, 117 Cal.App.2d 761, 256 P.2d 1005; Mears v. Jeffry, 80 Cal.App.2d 610, 615-616, 182 P.2d 294; Green v. Sherritt, 17 Cal.App.2d 732, 737, 62 P.2d 769; California Thorn Cordage, Inc., v. Diller, 121 Cal.App. 542, 547, 9 P.2d 594; Abatement and Revival, 1 Cal.Jur.2d § 6, 32. One cardinal rule of law relative to matter in abatement is that it must yet exist at the time the plea is raised. Archibald v. Iacopi, supra, 120 Cal.App.2d 666, 669, 262 P.2d 40; Buhrmeister v. Buhrmeister, 10 Cal.App. 392, 396, 102 P. 221; Schlueter v. Nelson, 74 Idaho 396, 263 P.2d 386, 388; Gradeless v. Gradeless, 114 Ind.App. 10, 49 N.E.2d 398, 400; Larsen & Son v. Retail Merchants' Mut. Ins. Co., 212 Iowa 943, 237 N.W. 468, 469-470; Shreveport Long Leaf Lumber Co. v. Garson Bros., 152 La. 343, 93 So. 117, 118; Marine Production Co. v. Shell Oil Co., Tex.Civ.App., 146 S.W.2d 1024; 1 C.J.S., Abatement and Revival, §§ 85 and 86, pp. 125-127; Abatement and Revival, 1 Cal.Jur.2d § 5, p. 32. The cited cases deal with abatement because of prematurity rather than abatement on other grounds. The distinguishing by the majority of Rudneck v. Southern California M. & R. Co., 184 Cal. 274, 281-282, 193 P. 775, whether valid or not, does not apply to these cases. Here, at the time respondents first raised their plea in abatement, the administratrix had been appointed, the claim had been filed and rejected, and thus the grounds for abatement had evaporated.
Cases cited by the majority to the effect that a premature complaint is a nullity and cannot be supplemented, Wittenbrock v. Bellmer, 57 Cal. 12; Gordon v. San Diego, 108 Cal. 264, 41 P. 301, etc., are clearly inconsistent with the proposition that prematurity is only matter in abatement. If the suit were a complete 'nullity,' the defect could not even be waived. Kelley v. Upshaw, supra, 39 Cal.2d 179, 186, 246 P.2d 23; Fireman's Fund Indemnity Co. v. Knorr, supra, 117 Cal.App.2d 761, 256 P.2d 1005, and other recent decisions establish beyond argument that the present rule is that prematurity is indeed only matter in abatement.
The majority cite Tanner v. Best's Estate, 40 Cal.App.2d 442, 445, 104 P.2d 1084 and other cases holding that a suit by or against an 'estate' is a nullity. Such is definitely a sound and appropriate conclusion. A suit against an 'estate' is tantamount to suing a brick or a locomotive. The distinction lies in the fact that Radar sued the 'Administrator and/or Administratrix' of the Rogers estate.
Of course, it was undoubtedly poor practice for appellants' attorneys to file this lawsuit prematurely. However, neither the law nor this court exists for the purpose of giving lawyers marks for their efforts. The goal is justice for the litigants within the law. The Probate Code imposes certain restrictions upon suits against estates in order to promote expedition in administration and militate against fraud. Admittedly, these considerations may and must take precedence over some valid claims. However, when the spirit and purpose of the code are clearly complied with, and law exists which will justify a holding that the letter of the law has also been fulfilled, a court should not go out of its way to bar a just claim. All requirements of notice to the administratrix of the existence of the claim were here fully met. The only question is whether a 'suit' had been filed within three months of rejection of the claim. Can any detriment to administration of the estate result from the fact that the 'suit' was premature rather than actually filed for the first time during the three months following the rejection of the claim? Not one iota. The majority makes much of the fact that the original complaint here was not served, but this is wholly beside the point. Section 714 merely requires that suit be 'filed' and not that the complaint be served within three months of the rejection of the claim. Because a suit was on file at the time his demand was rejected, as required by the code, his valid claim should be tried on its merits.
Therefore, inasmuch as the grounds of prematurity had evaporated by the time the plea was presented, the plea should not have been entertained. The judgment should be reversed. --------------- * Opinion vacated 317 P.2d 17.