Allen v. Marshall

| Cal. | Jul 1, 1867

By the Court, Sawyer, J.:

Action on a promissory note; defense—Statute of Limitations. The note was executed March 1st, 1861, and bears that date upon its face. It is payable on demand. 'The original complaint appears by the record—the filing indorsed thereon attested by the signature of the Clerk—to have been filed on the 28th of February, 1865. This is within the four years prescribed by the statute, and is in time. It is averred in the answer that no summons issued till June, 1865, after the four years had expired. Whether this averment is true, or not, can make no difference, for, under the twenty-first section of the Statute of Limitations, “ an action shall be deemed to be commenced, within the meaning of this Act, when the complaint has been filed in the proper Court.” (Stat. Lim., Sec. 21; Sharp v. Maguire, 19 Cal. 577" court="Cal." date_filed="1862-07-01" href="https://app.midpage.ai/document/sharp-v-maguire-5434896?utm_source=webapp" opinion_id="5434896">19 Cal. 577; Pimental v. City of San Francisco, 21 Cal. 367.) And the summons was issued within a year—in time to preserve the action. (Practice Act, Section 23.) If we were permitted to take the facts as averred in the answer, against the record itself, as to the filing of the first complaint, it still appears from the amendments to the answer, that the plaintiff on the 28th of February, 1865, actually “ placed on file in the Clerk’s office of this Court what purported to be a complaint against the defendant.” A copy of the complaint thus filed is then set out, and it is shown that it was subsequently altered, or amended, before summons issued or appearance by the defendant. There was then, according to defendant’s own averments, a complaint actually filed, and this is sufficient to secure the rights of the plaintiff. The fact that the plaintiff files an amended complaint, properly or improperly, or several of them, as in this instance, does not affect the question; for the action is commenced, within the meaning of the statute, when the original complaint is filed.

A party may amend without leave of the Court before summons issued, when there has been no appearance by the defendant. Whether he is authorized to mutilate the records of the Court in amending either when he amends with, or without, leave, is not a question that arises here. It is a question between the party and the Court.

If conceded to be true, we do not think the facts averred in the answer respecting the filing of the complaint sufficient to show that the cause of action was barred. It is, therefore, unnecessary to consider the ruling of the Court relating to the new promise. As to the Statute of Limitations, the judgment is correct upon the pleadings.

We find no other point suggested in the record having the semblance of plausibility.

Judgment and order denying a new trial affirmed.