Dore v. Thornburgh

California Supreme Court

Dore v. Thornburgh

27 P. 30, 90 Cal. 64, 1891 Cal. LEXIS 882

CourtCalifornia Supreme Court

DecidedJune 30, 1891

DocketNo. 13477

StatusPublished

Cited by20 cases

This text of 27 P. 30 (Dore v. Thornburgh) 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

Dore v. Thornburgh, 27 P. 30, 90 Cal. 64, 1891 Cal. LEXIS 882 (Cal. 1891).

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Opinion

Fitzgerald, C.

— This action was commenced by plaintiff on the fourth day of October, 1888, to recover upon a judgment given against the defendant on the ninth day of May, 1885, in the Queen’s Bench Division of the High Court of Justice, in England.

The complaint is demurred to on the grounds, — 1. That it does not state facts sufficient to constitute a cause of action; 2. That the alleged cause of action is barred by the provisions of section 339 of the Code of Civil Procedure.

The demurrer was sustained by the court below, and upon plaintiff failing to amend his complaint, judgment [66]*66final was rendered in favor of defendant. The appeal is taken upon the judgment roll alone.

The objection raised by the first ground of demurrer, that there is no averment in the complaint that the court ever made or gave the alleged judgment, is not well founded. The complaint alleges “ that thereafter, to wit, upon the ninth day of May, 1885, the said plaintiffs signed final judgment in the said action for the said sum of £3,920, in accordance with the terms of the said order, and which said judgment was then and there duly given, made, and entered.” This allegation we think sufficient as against a general demurrer.

Under the second ground of demurrer, the question presented for our determination is, whether this action, which is founded upon a judgment rendered by an English tribunal, .is barred by the statute of limitations within two years.

Subdivision 1 of section 339 of the Code of Civil Procedure, upon which respondent relies in support of her contention that the action is barred within that time, reads as follows:—

“1. An action upon a contract, obligation, or liability, not founded upon an instrument of writing, or founded upon an instrument of writing executed out of the state.”

That the judgment herein is not such an instrument in writing (Patten v. Ray, 4 Cal. 287) is evident from the use here made of the word “ executed,” which must be construed to apply to the act of the party sought, to be charged. But it is a contract in writing in the full sense of the term “ contract or obligation” as employed by our statute (Stuart v. Lander, 16 Cal. 375; 76 Am. Dec. 538; Reed v. Eldredge, 27 Cal. 346; Wallace v. Eldredge, 27 Cal. 498; Bean v. Loryea, 81 Cal. 152); and, as such, is not embraced in the two years’ limitation prescribed by the provisions of that subdivision of the section.

[67]*67Section 343 of the Code of Civil Procedure (“ An action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued”) was construed by this court, in Pillar v. Southern Pac. R. R. Co., 52 Cal. 42 (which was an action for damages for injuries caused by the alleged negligence of the defendant), to apply “to all suits in equity not strictly of concurrent cognizance in law and equity,” and that the two years’ limitation found in the first clause of the first subdivision of section 339 is applicable to all actions at law not specifically mentioned in other portions of the statute.

In Lux v. Haggin, 69 Cal. 269, which was an action for equitable relief, its meaning was extended so as to embrace “ all suits in equity as well as at law.” And while we do not think that the construction put upon this section was necessary to the decision of either case, we are satisfied with the reasoning and the conclusion reached in the latter, and regard it as the correct interpretation of the intention of the legislature as there expressed. We are therefore of the opinion that this action, which is not specifically provided for by any other section of the statute of limitations, falls within the meaning of section 343; and as it was commenced within the period of time therein prescribed, it follows that the court below erred in sustaining the demurrer.

We advise that the judgment be reversed, with directions to the court below to overrule the demurrer.

Foote, C., and Vanclief, 0., concurred.

The Court.

— For the reasons given in the foregoing opinion, the judgment is reversed, with directions to the court below to overrule the demurrer.

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Fitzgerald, C.

— This action was commenced by plaintiff on the fourth day of October, 1888, to recover upon a judgment given against the defendant on the ninth day of May, 1885, in the Queen’s Bench Division of the High Court of Justice, in England.

The complaint is demurred to on the grounds, — 1. That it does not state facts sufficient to constitute a cause of action; 2. That the alleged cause of action is barred by the provisions of section 339 of the Code of Civil Procedure.

The demurrer was sustained by the court below, and upon plaintiff failing to amend his complaint, judgment [66]*66final was rendered in favor of defendant. The appeal is taken upon the judgment roll alone.

The objection raised by the first ground of demurrer, that there is no averment in the complaint that the court ever made or gave the alleged judgment, is not well founded. The complaint alleges “ that thereafter, to wit, upon the ninth day of May, 1885, the said plaintiffs signed final judgment in the said action for the said sum of £3,920, in accordance with the terms of the said order, and which said judgment was then and there duly given, made, and entered.” This allegation we think sufficient as against a general demurrer.

Under the second ground of demurrer, the question presented for our determination is, whether this action, which is founded upon a judgment rendered by an English tribunal, .is barred by the statute of limitations within two years.

Subdivision 1 of section 339 of the Code of Civil Procedure, upon which respondent relies in support of her contention that the action is barred within that time, reads as follows:—

“1. An action upon a contract, obligation, or liability, not founded upon an instrument of writing, or founded upon an instrument of writing executed out of the state.”

That the judgment herein is not such an instrument in writing (Patten v. Ray, 4 Cal. 287) is evident from the use here made of the word “ executed,” which must be construed to apply to the act of the party sought, to be charged. But it is a contract in writing in the full sense of the term “ contract or obligation” as employed by our statute (Stuart v. Lander, 16 Cal. 375; 76 Am. Dec. 538; Reed v. Eldredge, 27 Cal. 346; Wallace v. Eldredge, 27 Cal. 498; Bean v. Loryea, 81 Cal. 152); and, as such, is not embraced in the two years’ limitation prescribed by the provisions of that subdivision of the section.

[67]*67Section 343 of the Code of Civil Procedure (“ An action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued”) was construed by this court, in Pillar v. Southern Pac. R. R. Co., 52 Cal. 42 (which was an action for damages for injuries caused by the alleged negligence of the defendant), to apply “to all suits in equity not strictly of concurrent cognizance in law and equity,” and that the two years’ limitation found in the first clause of the first subdivision of section 339 is applicable to all actions at law not specifically mentioned in other portions of the statute.

In Lux v. Haggin, 69 Cal. 269, which was an action for equitable relief, its meaning was extended so as to embrace “ all suits in equity as well as at law.” And while we do not think that the construction put upon this section was necessary to the decision of either case, we are satisfied with the reasoning and the conclusion reached in the latter, and regard it as the correct interpretation of the intention of the legislature as there expressed. We are therefore of the opinion that this action, which is not specifically provided for by any other section of the statute of limitations, falls within the meaning of section 343; and as it was commenced within the period of time therein prescribed, it follows that the court below erred in sustaining the demurrer.

We advise that the judgment be reversed, with directions to the court below to overrule the demurrer.

Foote, C., and Vanclief, 0., concurred.

The Court.

— For the reasons given in the foregoing opinion, the judgment is reversed, with directions to the court below to overrule the demurrer.

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27 P. 30, 90 Cal. 64, 1891 Cal. LEXIS 882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dore-v-thornburgh-cal-1891.

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