Higgins v. Graham

SMITH, C.

This suit was brought on a promissory note, dated July 30, 1896, and due two months after date, for the sum of three hundred and seventy-five dollars. The defendant had judgment, from which and from an order denying his motion for a new trial the plaintiff appeals. The only question involved is as to the statute of limitations, and this turns entirely upon the effect of the pleadings, findings, and judgment. The note is set out in the complaint, and on its face appears to have been executed at Pittsburg, Pennsylvania. The complaint was filed September 5, 1901, more

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than five years after the maturity of the note; but in explanation of the delay several acknowledgments of the indebtedness are alleged, of dates, respectively, October 14, 1897, June 15, 1898, November, 1899, May, 1901, July, 1901. The allegation of the first acknowledgment is: “That on or about the fourteenth day of October, 1897, defendant acknowledged to plaintiff his (defendant’s) said indebtedness upon the said promissory note in the words following to wit; ‘This (referring to the said note) is a just debt. You have accommodated me and I will pay it.’ ” The allegations of the other acknowledgments are in similar form; and it is further alleged “that by each and all of his said words, promises, and acknowledgments hereinbefore alleged, defendant meant and referred to and acknowledged and promised to pay to plaintiff his, the said defendant’s, indebtedness upon the said promissory note.” The answer, referring to the several acknowledgments, denies as to each that defendant ever “acknowledged to plaintiff his indebtedness upon the promissory note set out in the plaintiff’s complaint in the following words”—and so on, as in the complaint. It denies also that “by any of the promises and acknowledgments claimed to have been made by defendant, and set out in plaintiff’s complaint, he promises to pay any indebtedness upon said promissory note.” Finally subdivision 1 of section 339 of the Code of Civil Procedure is pleaded in bar of the action. The findings are, that plaintiff’s cause of action is barred by the statute of limitations as alleged: “That [as to each of the alleged acknowledgments] it is not true that on [the day named] or at any other time, or at all, defendant acknowledged to plaintiff his indebtedness upon the promissory note set out in the plaintiff’s complaint in the following words,” etc., as in the complaint; and finally, “that it is not true that at any time or at all defendant ever made an acknowledgment or acknowledgments admitting his obligation to pay said note, or that he ever agreed or promised to pay the same.” On the trial no evidence was offered by the plaintiff; and none by the defendant, except to the effect that he was a resident of the state of Pennsylvania until the summer of 1897, and since then has been a resident of the city of Los Angeles. The position of the appellant is, that the allegations of the complaint as to the several ac