106 P. 715 | Cal. | 1910
Lead Opinion
After this case had been heard and decided in Department One, a rehearing was granted in order that we might further examine the authorities touching upon the defense *194
of the statute of limitations, and particularly that we might consider whether or not at the time of the adoption of section
We therefore adopt the aforesaid opinion as that of the court. It is as follows: —
Addendum
"This action was brought to foreclose a mortgage given by the defendants Sonnemann and Brackett to secure their promissory note for $10,000 made on the 7th day *195
of December, 1896, and payable to plaintiff, a Massachusetts corporation, one year after date. Both note and mortgage were executed in Massachusetts. The action was commenced on November 23, 1906. On the same day the court made an order providing for the service of summons on the defendant Sonnemann by publication. Pursuant to this order, which was based upon a sufficient affidavit, the summons was duly published, and a copy thereof, together with a copy of the complaint, were, on November 23, 1906, mailed by plaintiff to Sonnemann at his residence in the state of Washington. Sonnemann did not appear within the time allowed by law, and his default was duly entered, as was that of Brackett, on February 27, 1907, and a decree of foreclosure was made and entered against said defendants. Shortly thereafter Sonnemann appeared and moved the court to set aside the decree and open the default, and this motion was granted by an order reading: `It is ordered that the decree be set aside and the default opened, and that the case be tried upon its merits. It is further ordered, that the defendant pay all costs that have accrued to this date.' The defendant Sonnemann promptly paid the costs so required to be paid by him, and filed his answer. In it he set up two defenses — that the note and mortgage were not supported by any consideration, and that the cause of action is barred by section
"The cause came on for trial, some months later, and, before any testimony had been offered, counsel for Sonnemann in effect withdrew the first defense set up in his answer and placed his reliance solely upon the plea of the statute of limitations (Code Civ. Proc., sec.
"The affidavits filed in support of the motion to vacate the default showing that he had in fact received copies of the summons and complaint mailed to him, and alleged circumstances *196
tending to make out a case of excusable neglect on the part of the attorney who had been employed by him to defend the suit. But such mailing, pursuant to an order for publication of summons, was not a `personal service,' and he was therefore entitled to have the default set aside under the third clause of section
"The sole question, then, is whether a plea of the statute of limitations is an answer to the merits. The point is one that has come before the courts of various states, and while the earlier cases showed a tendency to hold that such a plea is merely technical, and should not be permitted to a defendant who has been in default (Hawes v. Hoyt, 11 How. Pr. 454; Brown v. Sutter,
1 Dall. (U.S.) 239; Pennington v. Gibson,
"As has been suggested, most of these decisions rest upon the position, not formerly held, that statutes of limitations are to be viewed favorably as affording to parties who may, by the lapse of time, have lost the ability to procure evidence, repose and security from stale demands. In Wood v. Carpenter,
"We cannot regard the error so committed as harmless. The particular provision relied on by Sonnemann was section
In the petition for rehearing it was urged by respondent that the statute of limitations upon which appellant relied (Code Civ. Proc., sec.
In San Jose Deposit Bank of Savings v. Bank of Madera,
Both parties to the contract were in Massachusetts at the time it was made. When the time for payment of the note arrived they still resided in Massachusetts, and on breach of the obligation a cause of action on the note alone arose in Massachusetts regardless of the fact that the remedy of foreclosure must be pursued in California, where the land subject to the mortgage was situated. (Felton v. West,
The judgment is reversed and the cause remanded for a new trial.
Beatty, C.J., does not participate in the foregoing.