Charles F. Harper Co. v. DeWitt Mortgage & Realty Co.

EDMONDS, J.

This appeal presents for review an order of the superior court denying a motion of the plaintiff to enter judgment against the sureties upon an undertaking given to stay the execution of a judgment directing the payment of money. The question for decision is whether the statute of limitations runs in favor of the sureties in such a case, and if so, what period of time is to be applied.

The plaintiff brought action and recovered a money judgment. To get a stay of execution pending an appeal, the defendants filed an undertaking executed by John H. Blair and C. E. Rachal, the respondents here, in the form required by section 942 of the Code of Civil' Procedure. Thereafter the judgment was affirmed, and a

remittitur

issued which was filed in the trial court on August 17, 1931. On June 26, 1936, the judgment not having been paid in full, the plaintiff served and filed notice of motion for the entry of judgment against the sureties on the undertaking. At the hearing, counsel for the respondents objected to the granting of the motion upon the ground that any claim against them was barred by the statute of limitations, more than four years having elapsed from the date of the filing of the

remittitur.

This objection was sustained and the motion denied.

The appellant contends that by executing the undertaking the respondents became parties to the original suit and that the motion for judgment against them was a step in that action—not a new action or a special proceeding. From this premise it argues that as statutes of limitation only apply to actions or special proceedings and the summary remedy provided by statute for enforcing the obligation is neither of these, the plaintiff is entitled to have judgment entered upon its motion at any time during the five-year period within which an action may be brought upon its judgment against the defendants in the action. The sureties take the position that the motion is barred either under the four-year statute

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of limitation applying to “an action upon any contract, obligation or liability founded upon an instrument in writing” (sec. 337, Code Civ. Proe.), or at the expiration of the three years fixed as the period of limitation “upon a liability created by statute, other than a penalty or forfeiture”. (Sec. 338, Code Civ. Proc.)