Miller v. Parker

JENNINGS, J.

Plaintiff instituted this action to recover from defendant the sum of $1,090 and interest thereon at the rate of eight per cent per annum from July 1, 1927. The complaint is based on a promissory note which is alleged to have been executed by defendant in the state of Nebraska on July 1, 1924, payable one year after date. The note is set forth

in haec verba

in the complaint. It is also alleged in the complaint that the payee of the note for a valuable consideration and prior to maturity indorsed and delivered it to plaintiff, who is the owner and holder thereof and that no part of the principal of said note has been paid. It is further alleged that the note constitutes a contract which is governed by the laws of the state of Nebraska and certain statutes of limitation of said state which are applicable to actions founded upon contracts are set forth. To the complaint thus drawn the defendant interposed a' demurrer on the single ground that it “does not state facts sufficient to constitute a cause of action against this defendant”. The demurrer was sustained without leave to amend and judgment was thereupon rendered ordering that the action be dismissed and that defendant recover his costs. From the judgment so rendered plaintiff appeals.

It is conceded that the single point urged by respondent in support of the demurrer was that the complaint shows on its face that it is barred by the statute of limitations. It is, however, clearly established in California that even if it appears upon the face of a complaint that the cause of action therein alleged is barred by the statute of limitations, the defense is nevertheless not available unless it is pleaded and that it may not be raised by a general demurrer but must be specifically stated as a ground of demurrer

(Bliss

v.

Sneath,

119 Cal. 526, 528 [51 Pac. 848];

California Safe etc. Co.

v.

Sierra etc. Co.,

158 Cal. 690, 698 [112 Pac. 274, Ann. Cas. 1912A, 729];

Murphy

v.

Stelling,

8 Cal. App. 702, 706 [97 Pac. 672];