Slemons v. Paterson

CARTER, J.

This is an appeal by defendants from an order granting plaintiffs’ motion for a new trial. While the

[614]

notice of intention to move for a new trial contains all of the statutory grounds, it appears that the motion was granted solely upon the fifth ground stated in the notice, namely, newly discovered evidence.

The action was brought by plaintiffs on the 26th day of February, 1937, to recover a deficiency judgment after the sale of property under a deed of trust given to secure the balance of the purchase price thereof. The action was commenced four years and twenty-five days after the accelerated maturity of the note, which resulted from the filing for record in the recorder’s office' of a notice of default on January 31, 1933. The trial court rendered judgment for the defendants, who relied upon the four-year statute of limitations for actions on written instruments. (Sec. 337, subd. 1, Code Civ. Proc.)

Section 580a of the Code of Civil Procedure, and the 1933 amendment to section 337 of the said code, requiring actions for certain deficiency judgments to be brought within three months after the exercise of the power of sale, are not applicable here, since the sale took place before their effective date.

(Christina

v.

Hightower,

22 Cal. App. (2d) 339 [70 Pac. (2d) 988];

Bank of America Nat. T. & S. Assn.

v.

Dennison, 8

Cal. App. (2d) 173 [47 Pac. (2d) 296].)

In support of their motion for a new trial, plaintiffs filed an affidavit in which they stated that since the trial they had discovered that defendant Malcolm G. Paterson had been absent from the State of California, for a period of more than twelve weeks, and Laura C. Paterson, his wife, for a period of more than forty days during the four-year period from the accelerated maturity date of the note until the commencement of the action, with the result that the action was not barred by the statute of limitations above mentioned. (See sec. 351, Code Civ. Proc.)