Steiner v. Croonquist

108 Cal.App.2d Supp. 895 (1951) L. L. STEINER, Appellant,

v.

HUGH A. CROONQUIST et al., Respondents.

California Court of Appeals.

Nov. 26, 1951. Ruel Liggett for Appellant.

W. B. Dennis for Respondents.

BURCH, J.

This is an action on two promissory notes, one for $750, dated February 2, 1940, which became due February 1, 1942, the other for $300, dated November 1, 1939, due six months from date. The complaint was filed on May 17, 1950. The court held the notes barred by subdivision 1 of section 337 of the Code of Civil Procedure.

Plaintiff urges on appeal that the affirmative defense of the statute was not before the court because the subdivision of the section relied upon was not pleaded in the answer, and, further, that if the issue was before the court the running of the statute was tolled by a new promise to pay within four years of suit.

The answer of the defendants alleges, among other things, that plaintiff's action "... is barred by section 337 of the Code of Civil Procedure of the State of California." At the trial it developed that defendants had, within four years of the date of filing the suit but more than four years after the notes matured, written a letter to plaintiff's assignor, in which it was stated "... will you send me an accounting of what I owe you and let's get this cleaned up. I have my books from C. Lee now and would like to close them."

Section 458 of the Code of Civil Procedure authorizes a plea of the statute of limitations by "... (giving the number of the section and subdivision thereof, if it is so divided, relied upon) ..." Section 337 has two subdivisions. It has been held that a failure to plead the pertinent subdivision, though pleading the section, is an insufficient plea. (Wolters v. Thomas, 3 Cal.Unrep. 843 [32 P. 565]; Overton v. White, 18 Cal.App.2d 567 [64 P.2d 758, 65 P.2d 99]; Hart v. Slayman, 30 Cal.App.2d 556 [86 P.2d 861]; Davenport v. Stratton, 24 Cal.2d 232 [149 P.2d 4]; Downs v. Benatar's etc. Stores, 75 Cal.App.2d 61 [170 P.2d 88].)

Other decisions are to the effect that where the section is pleaded and the pertinent subdivision is not designated the pleading is nonetheless not a nullity. (Churchill v. Woodworth, 148 Cal. 669 [84 P. 155, 113 Am.St.Rep. 324]; St. Paul Title & Trust Co. v. Stensgaard, 162 Cal. 178 [121 P. 731, 39 L.R.A.N.S. 741].) [108 Cal.App.2d Supp. 898]