Radar v. Rogers

SHENK, J.,

Dissenting.—It is the general rule, applicable in this case, that in order properly to commence an action there must first be a party then in existence capable of being sued and against whom a judgment may be entered. Secondly, facts must exist at that time which when alleged would be sufficient to support a judgment in favor of the plaintiffs. Here neither condition existed.

Section 714 of the Probate Code requires that the holder of a claim must “bring suit” in the proper court against the executor or administrator, within three months after the date of service of notice of…