Wilmans v. Weissman

STURTEVANT, J.

The plaintiff brought this action to recover on a promissory note. To her third amended complaint the defendants interposed a demurrer. The demurrer was sustained without leave to amend and from the judgment entered thereon the plaintiff has appealed.

The payment of the note sued upon was formerly secured by a second deed of trust. But the first deed of trust was foreclosed and at the sale the property was sold for a sum less than the amount of the first obligation. It will not be necessary to again refer to the second deed of trust.

On April 20, 1930, the defendants executed their promissory note in fayor of the plaintiff. The principal named in the note was $5,000. It was payable one year after date. This action was commenced on October 11, 1937. In their

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demurrer the defendants pleaded the statute of limitations. (Code Civ. Proc., subd. 1, sec. 337.) Under the foregoing facts the demurrer was properly sustained as the action was not commenced within four years after the promissory note fell due and payable unless the delay was accounted for by other allegations contained in plaintiff’s pleading. The plaintiff claims that notwithstanding the foregoing facts the demurrer should not have been sustained for several different reasons. We will take up those reasons one at a time and state the facts on which they were based.

In the amended complaint the plaintiff alleged the enactment of certain moratorium acts, chapter 7, Statutes 1935; chapter 348, Statutes 1935; chapter 5, Statutes 1937, and chapter 167, Statutes 1937. The moratorium acts enacted by our state legislature are numerous. One class of those acts provided a procedure by which a debtor might go into court and obtain an order providing that certain proceedings might not be had and taken against the debtor until a certain date not distant later than the date designated in the statute. The other class of said statutes, in definite terms, provided an extension of time. Chapter 7, Statutes of 1935, fell in the first class above mentioned. In her complaint the plaintiff did not claim that an order of court had been made. It is apparent therefore that said statute is of no help to her. Chapter 348 of the Statutes of 1935 took effect on June 21, 1935. It provided in section 19 that obligations which would expire during the period commencing with the effective date of that statute and ending on February 1, 1937, the time was extended so as not to expire until the 1st day of July, 1937. However said statute took effect June 21, 1935, and according to the facts of the present case the statute of limitations, Code of Civil Procedure, section 337, had expired on May 1, 1935. Under those circumstances said statute was inapplicable. (16 Cal. Jur. 399, and cases there cited.) Both chapter 5 and chapter 167, Statutes of 1937, provided an extension of the time set forth in section 19 of chapter 348 of the Statutes of 1935. We have just shown that the latter statute was not applicable and it is therefore obvious that chapters 5 and 167 of the Statutes of 1937, purporting to amend chapter 348 of the Statutes of 1935, are not helpful to the plaintiff.