Getz v. Wallace

[213]

DRAPER, P. J.

This is a companion ease to

Barney

v.

Buswell,

No. 22054, decided this day. All the points argued in that case are urged here, and we refer to our opinion

(ante,

p. 208 [45 Cal.Rptr. 910]) for their disposition.

One new issue is raised. The complaint shows on its face that it was filed more than three years after distribution to defendant shareholders of the assets of Yellow Creek Logging Co. Defendants contend that the applicable statute of limitations, under the law of Oregon (Ore. Rev. Stats., § 12.100[2]), and that of California (Code Civ. Proc., § 359) is three years. No defendant demurred. Defendant Wallace answered, but did not assert any issue of limitation. The other two defendants defaulted. All three appeal from the judgment for plaintiff.

In civil actions, the statute of limitations is a personal defense which is waived by failure to plead it (1 Witkin, Cal. Procedure (1954) p. 597). Defendants concede this rule, but assert that the present action to recover corporate debts from directors is one for a penalty or forfeiture, and thus is “penal in its nature”

(Saracco Tank & Welding Co.

v.

Platz,

65 Cal.App.2d 306, 315 [150 P.2d 918]). It follows, they contend, that the rule applicable to criminal eases applies here. Under that rule, the statute is jurisdictional, and a pleading which shows on its face that the allowable period has run is fatally defective (1 Witkin, Cal. Crimes (1963) p. 224).

Appellants concede that they find no authority for this view. Nor does any such determination seem likely. The reason for the rule in criminal cases is that the state, the plaintiff in all criminal actions, has decreed that it will not prosecute crimes after the statute of limitations has run. Thus it has limited the power of the courts to act