76 P. 898 | Cal. | 1904
This suit was brought on a promissory note, dated July 30, 1896, and due two months after date, for the sum of three hundred and seventy-five dollars. The defendant had judgment, from which and from an order denying his motion for a new trial the plaintiff appeals. The only question involved is as to the statute of limitations, and this turns entirely upon the effect of the pleadings, findings, and judgment. The note is set out in the complaint, and on its face appears to have been executed at Pittsburg, Pennsylvania. The complaint was filed September 5, 1901, more *132
than five years after the maturity of the note; but in explanation of the delay several acknowledgments of the indebtedness are alleged, of dates, respectively, October 14, 1897, June 15, 1898, November, 1899, May, 1901, July, 1901. The allegation of the first acknowledgment is: "That on or about the fourteenth day of October, 1897, defendant acknowledged to plaintiff his (defendant's) said indebtedness upon the said promissory note in the words following to wit: `This (referring to the said note) is a just debt. You have accommodated me and I will pay it.'" The allegations of the other acknowledgments are in similar form; and it is further alleged "that by each and all of his said words, promises, and acknowledgments hereinbefore alleged, defendant meant and referred to and acknowledged and promised to pay to plaintiff his, the said defendant's, indebtedness upon the said promissory note." The answer, referring to the several acknowledgments, denies as to each that defendant ever "acknowledged to plaintiff his indebtedness upon the promissory note set out in the plaintiff's complaint in the following words" — and so on, as in the complaint. It denies also that "by any of the promises and acknowledgments claimed to have been made by defendant, and set out in plaintiff's complaint, he promises to pay any indebtedness upon said promissory note." Finally subdivision 1 of section
The latter point may be disposed of by saying that we do not perceive how any of the constitutional provisions cited can be regarded as applicable to the case. The provision in question, or legislation of a substantially similar character, has existed in this state for more than half a century (Hittell's General Laws, Stats. 1852-1861; Stats. 1865-1875); and though repeatedly before this court, the constitutionality of such legislation has never been questioned. (Patten v. Ray,
With regard to the former point, the position of the appellant is, that the denials in the answer are pregnant with an admission in each case of an acknowledgment of the debt in some other words than those charged (Code Civ. Proc., sec. 437, Pomeroy's ed., p. 220 et seq., and authorities cited); and hence that the allegations of the complaint are to be taken as substantially admitted. To this it is replied by the respondent that the complaint is to be construed as averring that the promises or acknowledgments alleged were made in writing; and hence that, under familiar rules of pleading, it was sufficient to deny the writings alleged.
Of the respondent's contentions, the first is clear; for otherwise, under section
We advise that the judgment and order appealed from be affirmed.
Harrison, C., concurred. *135
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.
McFarland, J., Henshaw, J., Lorigan, J.