Gallagher v. McGraw

California Supreme Court

Gallagher v. McGraw

64 P. 1080, 132 Cal. 601, 1901 Cal. LEXIS 1106

CourtCalifornia Supreme Court

DecidedMay 3, 1901

DocketSac No. 864.

StatusPublished

Cited by7 cases

This text of 64 P. 1080 (Gallagher v. McGraw) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gallagher v. McGraw, 64 P. 1080, 132 Cal. 601, 1901 Cal. LEXIS 1106 (Cal. 1901).

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Opinion

COOPER,C.

—This appeal is from the judgment. The court below ordered judgment dismissing the case upon the ground that it had no jurisdiction. The findings show that the note upon which suit was brought was for the sum of two hundred dollars principal, with interest from date.

The demand, exclusive of interest, did not amount to three hundred dollars, and hence the superior court had no jurisdiction. (Const., art. VI, sec. 4; Christian v. Superior Court, 122 Cal. 119.)

The fact that the claim upon the note, with accrued interest, amounted to over three hundred dollars when presented to the administratrix does not change the result. The action is upon the note. It is made necessary, under the statute, to present a claim of this kind to the representative of deceased before an action can be maintained upon it, but when the action is brought, it is upon the original claim or note. The presentation of the claim in no way changes the nature of the demand, nor the form in which the action must be brought. After the *602 claim is presented, then the holder, in case of rejection, may maintain an action thereon. (Code Civ. Proc., sec. 1500.) He can recover only upon the claim so presented and rejected. (Lichtenberg v. McGlynn, 105 Cal. 47; Etchas v; Oreña, 127 Cal. 592.)

The judgment should he affirmed.

Haynes, C., and Gray, C., concurred.

For the reasons given in the foregoing opinion the judgment is affirmed. Van Dyke, J., Harrison, J., Garoutte, J.

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COOPER,C.

—This appeal is from the judgment. The court below ordered judgment dismissing the case upon the ground that it had no jurisdiction. The findings show that the note upon which suit was brought was for the sum of two hundred dollars principal, with interest from date.

The demand, exclusive of interest, did not amount to three hundred dollars, and hence the superior court had no jurisdiction. (Const., art. VI, sec. 4; Christian v. Superior Court, 122 Cal. 119.)

The fact that the claim upon the note, with accrued interest, amounted to over three hundred dollars when presented to the administratrix does not change the result. The action is upon the note. It is made necessary, under the statute, to present a claim of this kind to the representative of deceased before an action can be maintained upon it, but when the action is brought, it is upon the original claim or note. The presentation of the claim in no way changes the nature of the demand, nor the form in which the action must be brought. After the *602 claim is presented, then the holder, in case of rejection, may maintain an action thereon. (Code Civ. Proc., sec. 1500.) He can recover only upon the claim so presented and rejected. (Lichtenberg v. McGlynn, 105 Cal. 47; Etchas v; Oreña, 127 Cal. 592.)

The judgment should he affirmed.

Haynes, C., and Gray, C., concurred.

For the reasons given in the foregoing opinion the judgment is affirmed. Van Dyke, J., Harrison, J., Garoutte, J.

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64 P. 1080, 132 Cal. 601, 1901 Cal. LEXIS 1106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallagher-v-mcgraw-cal-1901.

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