Heinlin v. Castro

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring. This is an action to enforce the collection of a note executed by the defendants for the sum of six hundred dollars, dated January 25th, 1855, payable twelve months after date, and to foreclose a mortgage executed by the defendants to secure the payment of the note. The complaint was filed October 24th, 1860. The answer sets up the Statute of Limitations in defense. On the sixth day of September, 1861, the cause was tried, the evidence heard, and the case taken under advisement. On the sixth day of January, 1862, the Court, on the plaintiff’s motion, ordered that the suit be dismissed, and that the plaintiff be allowed to withdraw the note and mortgage. On the tenth day of January, 1862, the Court set aside the order made on the sixth, and rendered its decision and findings in favor of the defendants. Judgment was entered in their favor for costs, and the plaintiff appeals to this Court.

His first assignment of error is, that the Court erred in setting aside the order dismissing the action, and rendering final judgment [102]after the entry of the order of dismissal. This point is not well taken.. The right to dismiss an action is regulated by Sec. 148 of the Practice Act, which authorizes the plaintiff to dismiss the action “ at any time before trial, upon the payment of costs, if a counter claim has not been made.” The order dismissing the action was not authorized by any of the provisions of the Practice Act; it was therefore invalid, and the Court committed no error in setting it aside. The action had been tried, submitted, and taken under advisement by the Court. The plaintiff, therefore, had no right to dismiss it on his own motion. Eo written consent to the order of dismission appears to have been made by the defendants, nor do they appear to have consented to it in any way.

The next assignment of error is, that the finding of the Court that no payment was made on the note by defendants was against the evidence. The plaintiff, to avoid the Statute of Limitations, states, in his complaint, that the defendants paid on the note the' sum of four hundred and seventy-five dollars on the tenth day of June, 1857, and on the fourth day of July, 1857, the further sum of three hundred dollars, which were indorsed on the note. The Court finds that these payments were made by one Magin Castro, a son of the defendants, without their authority, knowledge, or consent, and the weight of the evidence seems to be in favor of the finding. But this finding is not material to the main point in the case, which is whether the action is barred by the Statute of Limitations. This question has been fully settled by numerous decisions of this Court, in which it has been held that a mortgage is barred equally with the note by the statute, and that a mere payment on the note, made after it is so barred, will not avoid the statute. There must be an acknowledgment of the debt, or new promise to pay it,. “ contained in some writing signed by the party to be charged thereby,” to take the case out of the statute. (Lord v. Morris, 18 Cal. 482; Pena v. Vance, 21 Id. 142; McCarthy v. White, Id. 496.)