Aсtion to enforce the payment by defendant the Supreme Council, Catholic Knights of America, a
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corporation, of a benefit certificate calling for two thousand dollars, issued to John M. Conway, naming his nephew, plaintiff, as beneficiary. At the first trial the defendants Noonan, Shea, and Menihan had judgment, and on the appeal of plaintiff and defendant corporation the judgment was reversed, for the reason that there was no finding on the plea of the statute of limitations (Code Civ. Proc., sec. 339, subd. 1) interposed by both appellants.
(Conway
v.
Supreme Council etc.,
Paragraphs 17 and 18 of the supplemental stipulation are as follows: “17. That during a periоd of more than two years prior to the death of said John M. Conway, to wit: from January 18, 1894, until his death, the said John M. Conway was continuously at his said home in the state of California and was not during said time out of the state. 18. That no action has at any time been brought or judgment recovered by the said Noonan, Shea, and Menihan, or either of them, against said John M. Conway, or Thomas J. Conway, (except this action,) for said surety indebtedness, . . . nor has any new promise in writing been made by the said John M. Conway or Thomas J. Conway to said Noonan, Shea, and Menihan,
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nor has the time for payment by the said John M. Conwаy been in any way extended. ’ ’ The indebtedness for which Noonan, Shea, and Menihan became sureties was the obligation of John M. Conway, deceased, which they paid June 4, 1892, to secure which the benefit certificate was assigned to them. What was true at the former trial is true now,—namely, that аs John Conway died in 1896, and had not been out of the state for more than two years prior to his death, the principal obligation was barred (Code Civ. Proe., sec. 339), and the lien became extinguished (Civ. Code, sec. 2911),—“unless,” as was held in the former appeal, “the principal obligation had bеen reduced to judgment or in some other equally effective form had been kept alive and enforceable. ’ ’ The case is here on the same facts as before, with the above additional facts <on the question of the bar to the action. As we understand respondents, they сlaim that because findings were waived the judgment has the support of every presumption in its favor; that the stipulations of the facts were read in evidence without objection, and that there is nothing here to review. But findings were waived because counsel stipulated as to the facts, аnd the facts thus stipulated became a part of the judgment-roll and the findings of the court on which its judgment rests.
(Muller
v.
Rowell,
Section 360 of the Code of Civil Procedure provides that “No acknowledgment or promise is sufficient evidence of a new оr continuing contract by which to take the case out of the operation of this title [time of commencing civil actions], unless the same is contained in some writing signed by the party to be charged thereby.” In this case the correspondence relied on by respondents all ocсurred long after the principal obligation was barred and the lien had become extinguished. If it be conceded that there was a new promise upon which an action might be brought, it did not renew or continue the lien, which could only be renewed by compliance with the requirements of sеction 2922 of the Civil Code.
Weinberger
v.
Wiedman,
It is advised that the judgment and order should be reversed and the cause remanded, with directions to enter judgment for plaintiff.
Haynes, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are reversed and the cause remanded, with directions to enter judgment for plaintiff.
Henshaw, J., McFarland, J., Temple, J.