People v. Osgood

STURTEVANT, J.

The plaintiff commenced an action against the defendants to recover a judgment against the defendants as the representatives of two decedents who had executed a bail bond in a criminal ease. The plaintiff pleaded its claim in two separate counts. In one count it pleaded that it had presented its claim to the defendant executrices. In the other count it omitted all allegations regarding presentation. The defendants demurred to each count, both generally and specifically. The demurrers were

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sustained and from a judgment entered thereon the plaintiff has appealed.

The plaintiff does not assert that the claims were presented within the times specified in section 1491 of the Code of Civil Procedure, but the plaintiff contends that the statute on the subject of times for the presentation of claims against the estate of deceased persons does not expressly include the state and therefore the state is not included. The defendants contend that the statute is written in such broad language that it applies to all persons, both natural and artificial, including the state.

Before we turn to the particular sections of the Code of Civil Procedure it is very necessary to construe the general body of the laws of which those sections are a part. That it is not the policy of this commonwealth not to be bound by any statute of limitations is made clear by certain enactments which date back to the first session of the state legislature. (Code Civ. Proc., sees. 315, 317, 345.) Moreover, it is the policy of this commonwealth that it will, even when it consents to be sued, claim the protection of certain statutes of limitation. (Stats. 1893, chap. 45; Stats. 1929, chap. 516.) As said in

People

v.

Kings County Dev. Co.,

48 Cal. App. 72, 75 [191 Pac. 1004, 1005] : “The general legislative policy of California is that the state shall be bound by its statute of limitations with respect to the bringing of actions for the enforcement of any and all such rights as may accrue to the state.” There is another proposition that is equally well settled. “As a general rule subject to certain exceptions in matters touching the sovereignty of the state, when a state, as plaintiff, voluntarily comes into court and invokes its aid, she is bound by all the rules established for the administration of justice between individuals and the suit is governed by the same rules as private suits. . . . The pleadings in an action by the state are in general governed by the ordinary rules of pleading. Thus the declaration or complaint must set forth such facts as constitute a cause of action or it will be demurrable. ...” (36 Cyc. 907, 909.)