Harris v. Fitting

THE COURT.

Plaintiffs acquired ownership of a $2,200 note and mortgage which had been executed by defendants Fitting on August 10, 1928 and had become due and payable August 10, 1931. On July 30, 1936, plaintiffs filed this action to foreclose the mortgage. Defendants Fitting demurred on the ground that the cause was barred by section 337 of the Code of Civil Procedure, the four-year statute of limitations. The demurrer was overruled, whereupon said defendants filed an answer which admitted execution of the note and mortgage and the balance due thereon but again pleaded, as an affirmative defense, the above cited statute of limitations. Plaintiffs then moved to strike the answer and for summary judgment under section 437c of the Code of Civil Procedure, enacted in 1933, on the ground that said defendants had no defense to the action and that their answer was frivolous. The motion, after argument and submission of written briefs, was granted and it was followed by entry on December 10, 1936, of decree of foreclosure, order of sale, and provision for deficiency judgment as prayed by plaintiffs. Defendants Fitting appealed from the decree and the cause

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is now before this court on motion of respondents to dismiss the appeal or affirm the judgment.

Appellants again urge the defense presented in the court below, i. e., that the cause is barred by section 337 of the Code of Civil Procedure. Respondents answer that that statute of limitations was extended by section 19 of Act 5104a (Deering’s 1935 Supp., p. 1341), commonly known as the Moratorium Law, effective June 21, 1935, which reads: “Whenever the time within which an action may be commenced upon any obligation founded upon a written instrument secured by mortgage, deed of trust or contract of purchase, or founded upon any guarantee of such obligation or any contract of suretyship therefor or any indorsement of such instrument, would expire by virtue of section 337 of the Code of Civil Procedure, or by virtue of the provisions of Chapter I, Statutes of Extra Session of 1934, or by virtue of the provisions of chapter VII, Statutes of 1935, or any other provision of law, during the period commencing with the effective date of this act and ending on February 1, 1937, such time is hereby extended so as not to expire until the first day of July, 1937.”