Canadian Bank of Commerce v. Leale
Before: Hall
Synopsis
Action upon Note—Last Day for Filing Complaint—Omission of Signature—Statute of Limitations.—In an action upon a note, where the complaint was filed on the last day to prevent the bar of the statute of limitations, the statute of limitations is hot plead-able by demurrer or by answer merely because the signature to the complaint was omitted.
Id.—Unsigned Complaint not Void, but Amendable.—An unsigned complaint is not void, but is sufficient as instituting an action, and may be amended.
Id.—Decision of Former Supreme Court.—The decision of a former supreme court in this state unreversed and unmodified must be followed by this court.
Id.—Weight of Authority Against Invalidity of Unsigned Pleading—Amendable Irregularity.—While there is some authority in other jurisdictions that an unsigned pleading is a nullity, yet the weight of authority is to the effect that the omission of the signature to a pleading is but an irregularity that does not affect the jurisdiction of the court, and may be cured by amendment.
HALL, J.
This is an appeal from a judgment against defendants, and comes to this court upon a bill of exceptions.
The action was brought to recover the sum of $6,000 and interest, as due and unpaid on a promissory note executed by defendants to plaintiff. The original complaint was filed on March 9, 1908, which it is conceded was the last day upon which an action could have been brought upon the note without being subject to the bar of the statute of limitations.
The original complaint was neither subscribed by plaintiff nor by its attorney when filed, but subsequently, to wit, on
[308]
March 26, 1908, after service of summons, but before any appearance by defendants, upon permission granted by the court, upon the
ex parte
application of plaintiff, the complaint on file was subscribed by plaintiff’s attorneys, and on the same day an amended complaint in due form and properly signed was filed.
The only defense relied on by defendants is that of the statute of limitations, which was raised both by demurrer and by answer to the amended complaint.
The only claim made by appellant for a reversal of the judgment is that the filing of a complaint, defective only in that it is neither signed by plaintiff nor by his attorney, is not sufficient to toll the running of the statute of limitations— that an action so commenced is, in law, not commenced at all.
In support of this contention appellants cite
Dixey
v.
Pollock,
8 Cal. 570, but we think this case is against the contention of appellants. The court in
Dixey
v.
Pollock
was called upon to determine the relative rights of three attaching creditors—Dixey, Adams and John Pollock. The first attachment was levied in the case of
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