70 P. 223 | Cal. | 1902
Action to enforce the payment by defendant the Supreme Council, Catholic Knights of America, a *385
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.,
Paragraph 17 and 18 of the supplemental stipulation are as follows. "17. That during a period 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, nor has the time for payment *386
by the said John M. Conway been in any way extended." The indebtedness for which Noonan, Sheba, 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 as 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. Proc., sec. 339), and the lien became extinguished (Civ. Code, sec.
Section
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. *391