Anderson v. Mayers, No. 4774

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No. 4774 | Cal. | Jul 1, 1875

By the Coubt:

The question presented in this case is whether the action upon the promissory note is barred by the Statute of Limitations, and that question depends upon the construction to bo given to the amendment to the complaint.

The cause of action stated in the original complaint is a judgment rendered in the District Court of the Sixth Judicial District of the State of Nevada. The first amended *527complaint states that the defendant made and delivered to the plaintiff the promissory note therein described; that the plaintiff commenced an action on the note in the above-mentioned court; that a judgment was rendered in that action in favor of the plaintiff and against the defendant for the amount of the promissory note (the judgment itself being recited at length); “that the defendant has never paid any part of said note, or the interest thereon, or of said judgment, or the interest thereon, and that the same is now wholly due and unpaid.” The cause of action therein stated is a judgment rendered upon the promissory note therein described. The complaint does not, in any sense, contain two causes of action, one upon the note and the other upon the judgment rendered on the note. The allegation that the judgment was rendered upon the note is, in legal effect, an allegation that the note had become merged in the judgment. There could be no cause of action on a note upon which a valid judgment had been rendered.

The plaihtiff amended his amended complaint by striking out all the allegations in respect to the judgment, leaving it as a complaint, good in form, upon a promissory note, and the action was tried upon the complaint as amended.

If the construction we have given to the first amended complaint be correct, that it did not contain two causes of action, the one upon the promissory note, and the other upon the judgment rendered on the note—and we see no reason to doubt its correctness—then it must be held that the complaint did not state a cause of action on the promissory note until the last amendment was made. The action was not brought on the promissory note until that amendment was made, and the period mentioned in the Statute of Limitations had completely run before the action was brought on the note.

Order affirmed.