Puckhaber v. Henry

ANGELLOTTI, J.

This is an appeal from an order granting defendant’s motion for a new trial. The action was originally one against the Mutual Life Insurance Company of New York, a corporation, to recover the amount due on a policy of insurance issued by that company to John P. Henry, upon the life of said Henry, the plaintiff alleging that said policy had been assigned to him by Henry on August 22, 1896. Henry died on January 9, 1902, and the action was commenced May 8, 1902. The insurance company admitting the validity of the policy and alleging that both plaintiff and Kate Henry, administratrix of estate of Henry, claimed the proceeds of said policy, obtained an order substituting said administratrix as defendant, and discharging it from liability to either party, upon depositing in court the amount due on the policy, viz: twenty-five hundred and eleven dollars. This deposit was made. Said administratrix having been substituted as defendant, filed her answer and so-called cross-complaint. By this pleading she denied the allegations of the complainant as to assignment of the policy. She also alleged that plaintiff’s only claim to the policy or any of the proceeds thereof was that he held the policy as security for the payment of a promissory note made and delivered by Henry to Puckhaber in the year 1896 and payable one day after its date, and “that the obligation evidenced by the said promissory note and all thereof had prior to the death of the said John P. Henry become barred by the provisions of the statute of limitations of the state of California, to wit: by the provisions of section 337 of the Code of Civil Procedure of the state of California.” She asked that plaintiff take nothing by his action, and that the money deposited be paid to her. Plaintiff answered this so-called cross-complaint, alleging the

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execution and delivery by Henry to him on August 22, 1896, of a promissory note for $688.50, together with interest from that date at eight per cent per annum, and the assignment and delivery of said policy as security for such payment. He alleged that no part of this note had been paid, and denied that the obligation evidenced by the promissory note or any part thereof had prior to the death of Henry become barred by the statute of limitations, and also alleged that his rights in and to said policy were not barred. The trial court found in accord with these allegations of plaintiff as to the assignment and delivery of the policy as security, and the nonpayment of the amount due or any part thereof. It further found that plaintiff’s “cause of action herein” is not barred by any provision of the statute of limitations, but made no finding upon the issue as to the barring by such statute of the obligation evidenced by the promissory note. Judgment was given that plaintiff receive out of the sum deposited in court the amount due on said note, and that defendant receive the balance of such sum. Defendant’s motion for a new trial was based upon the grounds, among others, that the evidence was insufficient to sustain the finding that the plaintiff’s cause of action was not barred by the statute of limitations, and that the decision was against law in that the court had failed to find upon the issue as to the obligation evidenced by the promissory note being barred by such statute prior to Henry’s death.