Seattle Nat. Bank v. Dickinson

• Decision Date: 08 March 1913
• Citation: 130 P. 372,72 Wash. 403
• Parties: SEATTLE NAT. BANK v. DICKINSON et al.
• Court: Washington Supreme Court

130 P. 372

72 Wash. 403

SEATTLE NAT. BANK v. DICKINSON et al.

Supreme Court of Washington

March 8, 1913

Department 1. Appeal from Superior Court, King County; H. A. P. Myers Judge.

Action by the Seattle National Bank against George E. Dickinson and others. Judgment for plaintiff, and defendants appeal. Reversed, with directions to dismiss.

C. H Winders, of Seattle, for appellants.

Bausman & Kelleher, of Seattle, for respondent.

GOSE J.

This suit was brought against the executors of the estate of George W. Dickinson to recover upon a rejected claim. The executors have appealed from an adverse judgment.

The notice to creditors called for the presentation of claims to the executors at room 337, Burke Building, in the city of Seattle, 'within one year after the first publication' of the notice. The notice was dated September 16, 1909, and indorsed at the foot 'first publication September 17, 1909.' The place of business named in the notice was used as an office by the Pacific Engineering company, a corporation, and by the executors. The statute (Rem. & Bal. Code, § 1470) provides that the notice to creditors shall require a presentation of the claim 'within one year after the date of such notice.' The date of the notice is the date of its first publication. This is the clear meaning of the statute. The notice in this respect complies with the law.

Section 1470 further provides that every executor or administrator shall, 'immediately after his appointment,' cause to be published a notice to creditors, and 'such notice shall be published as often as the court shall deem necessary, but not less than once a week for four successive weeks.' The notice was published five consecutive weeks beginning on the 17th day of September, 1909. There was no order of the court fixing the number of publications, until the 20th day of September, three days after the date of the first publication. An order was then entered, directing that the notice be published 'at least once a week for four consecutive weeks.' On the 16th day of September, 1910, an order was entered reciting that the notice had been published four weeks successively, commencing on the 17th day of September, 1909, and ending on the 15th day of October following, and adjudging that due and legal notice had been given, and that the time for the presentation of claims against the estate would expire on the following day.

The contention of the respondent, that the words of the statute, 'as often as the court shall deem necessary,' mean that the order of the court determining the number of publications is a condition precedent to the publication of the notice, is not warranted by the language of the statute as an entirety. The notice must be published 'as often as the court shall deem necessary,' and not less than once a week for four successive weeks. This order may be taken at any time before final settlement of the estate. We have held that the publication of the notice by an executor of a nonintervention will may precede the adjudication of solvency. Strand v. Stewart, 51 Wash. 688, 99 P. 1027. The respondent in support of its contention has cited Wise v. Williams, 88 Cal. 30, 25 P. 1064. The California statute construed in that case provided that the notice 'must be published as often as the judge or court shall direct,' etc. The court said that, without the order, there can be no legal period of publication, and no authority for publishing, and that until the judge or court 'acts it cannot be known whether the period of publication will exceed the statutory minimum or not.' We think that the authority for publishing the notice comes from the statute, and not from the order of the court. It is true that it cannot be known in advance of the order how many publications the court may deem necessary. This fact, however, does not render ineffectual a publication which has run the minimum period required by the statute, and has been approved by the court. The object of the statute is notice, and, as this court has said in construing the factory act, 'notice is notice.' When the notice has been published the minimum period provided by the statute without an order of the court fixing the number of publications, the court may formally approve its sufficiency or direct a republication for such time as in its discretion it may deem necessary. This burden is, of course, assumed by an executor or administrator who publishes the notice in advance of an order fixing the period of publication.

The court found that the claim was duly presented to the executors on the 3d day of September, 1910, and several times thereafter; the last presentation being on or about the 1st day of October, 1910. This is more a conclusion of law than of fact. The finding is erroneous. There is evidence that the respondent's attorney took the claim to the office designated in the notice on the 3d day of September, 1910 and two or three times thereafter, before the 1st day of October, that he found the office closed, and that he finally left the claim with an employé in the office on the 5th day of October. There is also evidence to the effect that the office was kept open continuously; that one of the executors was in Seattle the greater part of the month of September, 1909; that his headquarters were at the office; that the Pacific Engineering Company, a...