Tofte v. Tofte

WHITE, J.,

pro

tem.

This is an appeal from a judgment after trial before the court without a jury, in which respondent herein obtained judgment for $3,500 for the alienation of the affections of her husband by appellant.

Appellant assails .the judgment first on the ground! that plaintiff’s cause of action was barred by the statute of limitations, and in pleading that defense in her answer defendant averred that “For further answer defendants allege that the said plaintiff’s action is barred by the Statute of Limitation set forth in section 339 of the Code of Civil Procediire of the State of California”, which section provides a two-year limitation.

Respondent contends, and appellant concedes, that this class of actions is barred by the provisions of section 340, subdivision 3, of the Code of Civil Procedure, which limits the bringing of such actions to one year after the accrual of the'cause of action. It appears to be the rule in this state that the one-year period of limitation applies to actions for alienation of affections. (Code Civ. Proc., sec. 340, subd. 3;

Harp

v.

Ferrell,

115 Cal. App. 160 [300 Pac. 978];

Davis

v.

Conant,

[113]

10 Cal. App. (2d) 73 [51 Pac. (2d) 151];

Mohn

v.

Tingley,

191 Cal. 470 [217 Pac. 733].) It is respondent’s contention that the defendant having pleaded section 339 and not the correct section, 340, subdivision 3, as a bar, she was precluded at the trial and on appeal from claiming the benefit of the statute of limitations not specifically and correctly pleaded.

With this contention of respondent’s we do not agree. We are of the opinion that when a defendant relies for answer upon any provision of the statute of limitations applicable to eases of this nature he need not necessarily plead all of the statutes upon which he intends to rely in his separate defenses. The defendant relying for answer upon any provision of the statute of limitations is not required, nor do the rules of pleading permit him, to allege matters of law. The facts are required to be stated which bring the case within the operation of the statute, and the court will apply to them the law. To this action for alienation of affections the defendant pleaded that the cause of action accrued more than two years before the commencement of the suit, and if it accrued more than two years prior to the commencement of the action it must of necessity have accrued more than one year before the commencement of the litigation, and consequently was barred by section 340, subdivision 3. The nature of the action, not the allegations of defendant’s answer, will determine what statute is applicable as a bar to recovery.