Wilson v. Walters

DRAPEAU, J. pro tem.

In this action to renew a judgment, complaint was filed three months more than five years after the judgment was entered. Unless the five-year period of the statute of limitations was extended, the cause is barred under the provisions of section 336 of the Code of Civil Procedure.

During the five-year period, the defendant made a series of $25 payments on account, commencing September, 1937, and ending in March, 1939, amounting to a total payment of $450 on a judgment for $8,858.75. This fact, standing alone, would not toll the statute.

(Purdy

v.

Maree,

31 Cal.App.2d 125 [87 P.2d 390].) But these payments together with the following correspondence establish an acknowledgment of the indebtedness sufficient to toll the statute of limitations:

“July 5, 1938. I did not get a payment on your judgment with Mrs. Wilson. Tour Mother came in but did not leave any money.

“Kindly send the payment through. Very cordially,”.

“Re the Wilson matter

July 18, 1938.

“On the first of July I was called east suddenly with my Mother and father on account of the serious illness of a relative, and I am still here handling the situation. I shall be required to stay here at least another week. It was entirely impossible, due to the suddenness and seriousness of the situation, to make the payment on the Wilson matter. I hope that you will understand that only this kind of a situation would cause me to do this. My Mother came in twice to see you, after we learned of the predicament, and missed you both times. She did not leave any message because your regular secretary was not there, but she did tell the new young lady to be sure to tell you that she was in and that she would

[3]

try to reach you before leaving. I tried to reach you on the telephone at home on Saturday night the 2nd but received no answer. We were unable to wait longer and I concluded to write you from here explaining the situation.