California Employment Commission v. MacGregor

THOMPSON, J.

The defendant John MacGregor, doing business as " Capitol Laundry, ’ ’ has appealed from an order of the Superior Court of Sacramento County, denying his motion to set aside a judgment creating a lien for payment of unemployment contributions in the sum of $532.41, due as required by law, from November 1, 1937, to October 12, 1938. The judgment was entered by the clerk on summary proceedings after a hearing by the commission pursuant to section 45.9 of the Unemployment Insurance Act of California. (Stats. 1935, p. 1850, as amended in 1939, p. 2056; Deering’s Gen. Laws, 1939 Supp., p. 1697, Act 8780d.) The appellant contends that the judgment lien is void because the liability was barred by the provisions of section 338, subdivision 1, of the Code of Civil Procedure. The statute of limitations was not raised until the motion to set aside the judgment lien was made.

A summary judgment lien was entered against the appellant July 24,1942, by the county clerk of Sacramento County, for unpaid unemployment contributions from November 1, 1937, to October 12, 1938, in the aggregate sum of $532.41, pursuant to the provisions of section 45.9 of the Unemployment Insurance Act,

supra.

That summary judgment is based on the prior findings and order of the commission upon hearing which occurred April 30, 1942, as provided by the fourth paragraph of the section previously referred to. Prom the affidavit which was filed in opposition to appellant’s motion to set aside the judgment it appears that due notice of the hearing before the commission was given; that the appellant was personally present and failed to plead the statute of limitations; that the only defense which he then made to the liability for payment of delinquent contributions was that he had sold his laundry business on October 12, 1938. It will be observed that the judgment lien does not include delinquent contributions after that date. The

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validity of the order of the commission fixing the amount of delinquent contributions was not subsequently challenged in any proceeding.

Having failed to raise the defense of the statute of limitations at the hearing before the commission, the appellant waived his right to that personal defense. The statute of limitations is a personal privilege which must be asserted at the proper time and in the proper manner or it is deemed to have been waived. (16 Cal.Jur. 603, § 199.) It is too late to raise the defense of the statute of limitations for the first time on a motion to set aside a summary judgment lien which is entered pursuant to law.