BEATTY, C. J.,
dissenting.—Having recorded my dissent from the order denying a rehearing of this cause, I desire to say that such dissent was not based upon any divergence of views as to the only question discussed in the department opinion,—viz., the question whether the defendant had established his defense, based upon the equitable doctrine of laches. That defense was only one of several separate defenses pleaded in the answer, and seems to have been abandoned in the trial court, as it certainly was on the appeal.' The plea, and the only plea, upon which the defendant rested his case in this court, was the three-years statute of limitations,—subdivision 1 of section 338 of the Code of Civil Procedure,— and to that his argument was exclusively devoted. His propositions were:—
Eirst, the duty of a guardian to pay over to his ward the
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balance found due on settlement of his final account is a purely statutory duty, and an action thereon is barred at the expiration of three years after it accrues,—that is to say, three years after such settlement,—and at the same time that the action is barred against the guardian an action upon the collateral obligation of his surety is barred. To sustain this proposition he cited the well-considered decision of this court in Bank upon rehearing of the case of
County of Sonoma
v.
Hall,
132 Cal. 589, [62 Pac. 257, 312, 65 Pac. 12, 459], which clearly does sustain the entire proposition. His second proposition was, that since the action against a guardian’s surety is barred in three years after settlement of the account, the ward is held to reasonable diligence in procuring such settlement,—that she cannot keep her cause of action alive indefinitely by neglecting to take a step which she is free to take the day she comes of age, and consequently that this plaintiff having neglected for more than three years after she reached her majority (April 30, 1897) to institute any proceeding to compel such settlement, the statute began to run at the expiration of that period,—viz., April 30, 1900,—and had fully run before the action was commenced, which was July 29, 1904. This
is
the doctrine of
Barnes
v.
Glide,
117 Cal. 1, [59 Am. St. Rep. 153, 48 Pac. 804], to the advantage of which this court in deciding the former appeal expressly held that the defendant was entitled.
(Cook
v.
Ceas,
143 Cal. 231, [77 Pac. 65].) The facts of the
Barnes
v.
Glide
case, of course, were different from the facts of this, but the general doctrine which applies to the one applies with equal force to the other, and is clearly stated by Justice Harrison in
Williams
v.
Bergin,
116 Cal. 60, [47 Pac. 887], as follows: “The rule is well settled that when the plaintiff’s right of action depends upon some act which he has to perform preliminarily to commencing suit, and he is under no restraint or disability in the performance of such act, he cannot suspend indefinitely the running of the statute of limitations by a delay in performing such preliminary act, and that if the time within which such act is to be performed is indefinite or not specified, a reasonable time will be allowed therefor, and the statute will begin to run after the lapse of such reasonable time. What is a reasonable time will depend upon the circumstances of each case. A party cannot by his own negligence, or for his own
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convenience, stop the running of the statute.
(Palmer
v.
Palmer,
36 Mich. 487, [24 Am. Rep. 605];
Atchison etc. R. R. Co.
v.
Burlingame,
36 Kan. 628, [59 Am. Rep. 578, 14 Pac. 271];
Ball
v.
Keokuk etc. Ry. Co.,
62 Iowa, 751, [16 N. W. 592];
High
v.
Board of Commrs.,
92 Ind. 580;
Bills
v.
Silver King Min. Co.,
106 Cal. 21, [39 Pac. 43];
Thomas
v.
Pacific Beach Co.,
115 Cal. 136, [46 Pac. 899].) The rule rests upon the principle that the plaintiff has it in his power at all times to do the act which fixes his right of action.”
This doctrine has been uniformly sustained in its application to a number and variety of cases in this state, and in other states. (See 13 Am. & Eng. Ency. of Law, 1st ed., p. 726.) Usually it has been applied in this state to cases in which a previous demand on the part of plaintiff was necessary to perfect the cause of action, as in
Bills
v.
Silver King Min. Co.,
106 Cal. 21, [39 Pac. 43]. In that case I stated in my concurring opinion the rule as to what is to be deemed, if unexcused, an unreasonable delay in taking the necessary preliminary step by the plaintiff to perfect his cause of action, as follows:—
“As to what is a reasonable time, that is ordinarily determined by the analogy of the statutory periods of limitation. If the cause of action is barred by the lapse of two years after it becomes complete, then the demand must be made within two years after the right to make it accrues, or a valid excuse must be shown for the failure to make it within that time.”
This statement of the rule in my concurring opinion has since been adopted by the court, and has thus become the settled rule of decision here as in other states.
(Merherin
v.
San Francisco Produce Exchange,
117 Cal. 217, [48 Pac. 1074].) And it has been applied not merely to the ease of demand of payment or of a deed or. other act due upon, demand, but to a case in principle precisely the same as this. The case of
Dennis
v.
Bint,
122 Cal. 40, [68 Am. St. Rep. 17, 54 Pac. 378], was an action to recover lands claimed by the defendants under an invalid sale in probate. In such a case the action by the administratrix was held to be barred in three years after settlement of her final account. It was commenced before the settlement of her account, but it was said with reference to her right of action: “In our opinion the administratrix was allowed under the amendment of 1880 a
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reasonable time in which to obtain settlement of her final account, and that, failing in this, the statute began to run, and were she the plaintiff here it could be pleaded against her with effect; what is such reasonable time must depend in general on the circumstances of each estate; but here it is apparent that much more than a reasonable time expired more than three years prior to the commencement of the action. There is no novelty in this proposition; it follows from the principle of quite extensive application that one cannot avoid the statute of limitations by delay in taking action incumbent upon him. Thus it was held that the executor of a will probated in Illinois, who had unreasonably delayed to take out ancillary letters of administration in New York, was not entitled to the benefit of a statute of the latter state which excepted from the general statute of limitations a certain period ‘after the granting of such letters.’
Kirby
v.
Lake Shore etc. R. R. Co.,
120 U. S. 130, [7 Sup. Ct. 430]; and see
Bauserman
v.
Blunt,
147 U. S. 647, [13 Sup. Ct. 466], approving
Bauserman
v.
Charlott,
46 Kan. 480, [26 Pac. 1051];
Mickle
v.
Walraven,
92 Iowa, 423, [60 N. W. 633];
Thomas
v.
Pacific Beach Co.,
115 Cal. 136, [46 Pac. 899].) If this be not the correct view of the statute, and if the right to sue can be preserved to the administrator and those whom he represents for ten years by failure, without excuse, to settle his final account, then it may be preserved in like manner for fifty years or indefinitely.”
All these and other cases decided here and in other jurisdictions were cited by counsel for appellant in his printed argument in support of the second proposition that the plaintiff could not wait an unreasonable time to institute proceedings to compel a settlement of her guardian’s account—that a period of more than three years was an unreasonable time, and consequently that the three-years statute had fully run. I think his defense was clearly established, and that the judgment of the superior court should have been reversed. But whether this be so or not there can be no doubt that he was entitled to a hearing upon the ease which he submitted to our judgment.
It is a matter of no practical consequence in view of the modification of that part of the Department opinion relating to the supposed ‘‘law of the case” to note the mistake of fact upon which it was founded, but I think the modification
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should have been more extensive. The statement still remains that the former casé presented the same fact appearing here,—viz., that plaintiff delayed, without excuse, for more than three years to take any step to compel an accounting. That fact was pleaded in the answer in the other case as part of the separate defense of laches, but of course was deemed denied, and since there was no finding upon the issue it did not appear from the record, which consisted of the judgment-roll alone, that three years, or even a single day, had elapsed before proceedings were commenced. And this state of the record showing a failure to find a fact material to the plea of the statute of limitations, was the sole occasion for what I said in my opinion regarding that plea and the doctrine of
Barnes
v.
Glide.
Henshaw, J., concurred.