26 P.2d 699 | Cal. Ct. App. | 1933
A suit upon an undertaking furnished on behalf of a person charged with felony having been decided by the superior court in favor of the plaintiff, the defendant appealed.
The appellant states that the question presented is as to whether upon the record the period of limitation began to *27 run upon accruing of the cause of action or of the right to the remedy. The facts are not disputed. A complaint was filed on June 24, 1925, against one Eli Stanton, who, on July 1st, was held to answer to the superior court, posted said undertaking on July 3d, was informed against on July 24th, and was arraigned on July 27th, at which time the date of trial was set for the fourteenth day of September following. On August 22, 1930, owners of securities hypothecated moved to exonerate the said bond, which motion was denied, and the same was forfeited. He having failed to appear, and his undertaking remaining unpaid, suit was commenced by the county December 1, 1930, thereon.
It is insisted by the appellant that the cause of action arose, and the limitation upon the time within which an action could be instituted thereon commenced to run, when Stanton failed to appear for trial. The undertaking provided that the defendant would "appear and answer the charge . . . mentioned in whatever court it may be prosecuted, and will at all times hold himself amenable to the orders and process of the court, and if convicted, will appear for judgment and render himself in execution thereof, or if he fails to perform either of these conditions, then we will pay", etc. By section
[1] Applied to a cause of action, the term to "accrue" means to arrive, to commence, to come into existence, to become a present enforceable demand. (Eising v. Andrews,
[2] The statute directs that if the principal shall neglect to appear for arraignment, trial or judgment, or upon any other occasion when his presence in court is lawfully required, his bail must be forfeited. It places no limitation upon the time within which such forfeiture shall be entered. Until then he may appear with or without his surety, or he may appear within twenty days thereafter and with satisfactory excuse have his surety exonerated. Any attempt at enforcement of the undertaking prior to forfeiture would be futile. As was stated in an early case: "`The law requires no man to do a vain thing,' is a familiar maxim, and certainly it would be vain to require a party to surrender to an officer having no power to detain him." (Allen
v. Breslauer,
The judgment is affirmed.
Stephens, P.J., and Archbald, J., pro tem., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on December 1, 1933, and the opinion amended to read as above.
A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on December 30, 1933.