Hensley v. Superior Court

The Court.

The superior court refused to make or enter an order or decree of due notice to creditors in the estate of one Calvin P. Hensley, deceased, pending therein, notwithstanding it appeared that an order had been theretofore made therein directing “that notice to the creditors be given in the Daily Record Union,” and that under said order a notice, proper in form, had been duly published in the designated paper once a week for a period of four successive weeks.

Petitioner, the executrix of said estate, seeks mandate here to compel the making and entry of such decree.

It appears that the judge of the superior court refused' to make the order, for the reason that he construed section 1490 of the Code of Civil Procedure to require that in all instances the order for notice to creditors must specify the number of times the notice shall be published; and that as the order, the substantive part of which is above set out, did not so specify, it was held void, and the notice given under it, for that reason, of no effect.

We regard this view of the statute as erroneous. While not wholly free from ambiguity, we think it sufficiently clear that the meaning of section 1490 is, that only in those instances where the court, in its discretion, by reason of the circumstances, deems it proper to require a more extended publication than the minimum *543 required by the statute, is it necessary to specify the time of publication in the order. In all other instances the order may be silent in that respect, and when it is so, a publication of proper notice thereunder, as in this instance, not less than the minimum number of times required by the section, is a compliance with the law, and constitutes legal notice to the creditors.

What is said in Wise v. Williams, 88 Cal. 30 , suggesting a different construction of the section was not ¡ ertinent to the question then before the court, and is, therefore, obiter; the fact in that ease being that the notice was published without any order having been made, and no question as to the requirements of such an order arose.

The construction here given accords with the practical construction very generally given the act by the bench and bar alike throughout the state for a great many years; and, even if its correctness were less obvious, should manifestly, on considerations of public policy, be adhered to, in order to avoid the disturbance in titles to real estate passing through the probate court during such period, which would otherwise follow.

We think, therefore, that the order of publication in this instance was sufficient, and that upon the showing made it was the duty of respondent to make the order applied for.

Nor is there any doubt that mandamus will lie in such a case. Section 1492 of the Code of Civil Procedure provides that when notice to creditors has been given as provided in the previous sections, and due proof thereof is made, “ an order or decree showing that due notice to creditors has been given, and directing that such order or decree be entered in the minutes and recorded, must be made by the court.”

Where, as here, the law affixes a right to specific relief from certain facts, and there is no question made as to the existence of such facts, the court has no discretion to refuse the relief. In such a case the limit of the discretionary power of the court has been reached, *544 and nothing hut a clear duty remains; and if the relief is refused, and there is, as in this instance, no appeal or other plain, speedy, and adequate remedy, mandamus will lie to compel it. (Wood v. Strother, 76 Cal. 545 ; 9 Am. St, Rep. 249; Keller v. Hewitt, 109 Cal. 146 ; Johnston v. Superior Court, 105 Cal. 666 .)

Let a peremptory writ issue as prayed.