Murphy v. Murphy

California Court of Appeal Feb 24, 1925 No. Docket No. 2908.Published

Before: Thompson

AI Brief

AI-generated · verify before citing

Holding. The court held that the statute of limitations is an affirmative defense that is waived if not pleaded, and that the plaintiff was entitled to costs but not attorney's fees. Additionally, the court affirmed that no lien could be placed on the wife's property absent allegations or proof of fraud.

Issues

Whether the trial court erred in applying the statute of limitations when it was not pleaded by the defendant.
Whether the trial court erred in failing to award the plaintiff costs and attorney's fees.
Whether the trial court erred in refusing to declare the judgment a lien upon the property of the defendant's wife.

Disposition. reversed

Quotations verified verbatim against the opinion

“The defense of the statute of limitations is strictly affirmative in its nature. In order to make it available it must be pleaded.”

“Having recovered a judgment for more than $300, plaintiff was entitled to her costs of suit as of course, without any order of court.”

“Except where attorney’s fees are specifically allowed by statute, or by contract of the parties, they are not recoverable by a successful litigant as costs or otherwise.”

THOMPSON, J.,

pro tem.

This is a proceeding in the nature of an action to renew a judgment for maintenance of a dependent daughter, and to declare said judgment to be a lien upon certain real property standing in the name of the wife of the judgment debtor. The appeal is from part of the judgment only which holds that the statute of limita

[391]

tions has barred the first two installments of the original judgment, and for failure on the part of the trial court to declare the judgment a lien upon the real property described in the complaint; and for failure to award plaintiff her costs and counsel fees. The appeal is from the judgment-roll alone. No evidence is before this court.

A demurrer was sustained as to the defendant Alice K. Murphy without leave to amend. From the judgment of dismissal entered pursuant thereto the plaintiff appealed. On appeal that judgment of dismissal was affirmed. (57 Cal. App. 182 [207 Pac. 43].) The material portions of the complaint here involved appear in that opinion of this court.

The plaintiff is the daughter of the defendant S. S. Murphy. In an action for maintenance under the provisions of section 206 of the Code of Civil Procedure of the state of California, filed March 13-, 1911, the plaintiff secured a judgment against her father for the sum of $15 per month. This judgment was entered

mine pro tunc

as of March 21, 1912. The present case was commenced July 23, 1919. The trial court found that said judgment for maintenance was paid and satisfied to May 5, 1914, and rendered judgment in favor of plaintiff and against the defendant S. S. Murphy for the accrued and unpaid installments with interest from August 5, 1914, to November 5, 1923, in the aggregate sum of $2,234.28. The trial court held that the statute of limitations had run against the two installments immediately prior to August 5, 1914, and found that the judgment did not create a lien and failed to award plaintiff her costs or counsel fees.

The statute of limitations was not pleaded by the defendant by either demurrer or answer.

Murphy v. Murphy

AI Brief

THOMPSON, J.,

More from California Court of Appeal

Related research

AI Brief