Smith v. Lawrence, 38 Cal. 24

Smith v. Lawrence

38 Cal. 24 | Cal. | 1869

Rhodes, J., delivered the opinion of the Court:

Judgment having been rendered for the defendant upon demurrer to the complaint, it will be convenient to consider the case upon the points made by the respondent.

First—The first point is, that no exception was taken by the plaintiff to the order sustaining the demurrer. When a party stands by a pleading, to which a demurrer is sustained, no exception to the decision is required. The office of an exception, reserved in the manner provided by the statute, is to cause the question of law, which was presented to and decided by the Court, to be made a matter of record, so that *28it may be re-examined by the Court on motion for a new trial, or be reviewed by the appellate Court. The action of the Court upon a demurrer usually is, and, in all cases, should be, entered of record; and the making of the same thing a matter of record a second time, by reserving an exception, would subserve no useful purpose. There is no more room to indulge the presumption of an acquiescence in the decision, because no exception was taken, than there would be that the losing party acquiesced in a judgment, because he took no exception to the order for judgment. The only authority cited by the defendant on this point is Bostwick v. McCorkle (22 Cal. 669), in which it is said that it did not appear that the plaintiff excepted to the order sustaining the demurrer to the replication, and that, therefore, the action of the Court could not be reviewed. No authority is cited by the Court in support of that position, and we are unable to see upon what ground it can be sustained. When a demurrer to a pleading is sustained, and the pleading is amended, the amendment operates as an acquiescence in the decision on the demurrer. It surely could not be said, that a refusal to amend would also be deemed an acquiescence in the decision. There is no mode in which a party could more distinctly manifest his dissent from the decision, than by refusing to amend. An exception is not necessary, unless a bill of exceptions, or a statement, under our system of practice, is requisite, in order to present for review, the question of law upon which the decision passed, which, the party insists, is erroneous; and neither a bill of exceptions nor a statement is required, where the record already presents the question of law and the decision of the Court.

Second—It is contended that the demurrer was properly sustained, because the complaint shows that the Statute of Limitations had run against the promissory notes. This position is correct, unless the agreement set forth in the complaint had the effect to suspend the running of the statute. One of the notes was dated January 30, 1858, and was payable one day after date; and the other was dated February 18, 1858, and was payable on demand. On the 15th of April, 1858, the plaintiff, in consideration of certain cove*29nants mentioned, and “for other good and valuable considerations,” paid by the defendant, agreed in writing with the defendant “that he would forbear to sue upon or demand payment” of the promissory notes until it should be finally determined by the Courts of the United States, whether the title of the claimants to the Hornero rancho was valid, and entitled to confirmation. It is alleged that in February, 1864, this title was finally rejected, and decided to be invalid by the Supreme Court of the United States. No sufficient reason is suggested why the agreement is not valid. It is not necessary, as insisted by the defendant, that he should have signed the agreement in order to render it valid, for the agreement did not provide that any act should be performed by him; but it is enough that it was binding upon the plaintiff. Nor is the allegation as to the failure of Parmelee’s title defective, for it is alleged that he claimed solely under the grantees of the Homero rancho, and that that title was finally rejected. Whether he could have acquired a title from the United States by entry and purchase is not material, for that is not the title in respect to which the agreement was made; and whether it was so acquired, is not a proper subject of investigation, under the demurrer, for the complaint contains no allusion to such title. Accepting the contract as valid and binding upon the plaintiff, it precluded him from suing upon the notes, until the happening of the event mentioned in the contract. During that period his cause of action was suspended; and during the same period, the Statute of Limitations did not run. (Ang. on Lim. Sec. 115.) The payee of the notes is entitled to the full term of four years in which to commence his action, and the extension of the time for the payment of the notes, did not deprive the payee of any portion of that time.

Third—Neither Parmelee nor Hammitt is a necessary party to this action. Neither of them will be affected by a judgment upon the promissory notes. The judgment will not prevent them from litigating the question as to the confirmation of the title to the rancho, or as to the validity or performance of their contract.

*30Judgment reversed and Court directed to overrule the demurrer.

Mr. Justice Crockett, having been of counsel in this cause, did not participate in the decision.