People ex rel. Dunn v. Melone

Temple, J. — Respondent was secretary of state for the term of four years ending December, 1875. It was his duty as such officer to collect and pay over to the state monthly the fees received by him. On the 1st of July, 1886, the relator, as controller, demanded of him that he account for and pay into the state treasury the sum of $11,109.50, alleged to have been received by him while in office, but for which it was claimed he had failed to account or make settlement with the controller, as required by law. Respondent taking no notice of this [575]demand, the controller proceeded to state an account under the provisions of section 437 of the Political Code. The account so stated was served upon respondent, who still failed to make any response, or to pay any portion of the amount claimed from him. This suit was commenced August 14, 1886. A demurrer was interposed, on the ground that the claim was barred by the statute of limitations. The demurrer wras sustained, and judgment entered against the plaintiff, who takes this appeal.

Our statute of limitations is divided into two chapters, one treating of actions for the recovery of real property; •the other of actions other than for the recovery of real property. Section 345, Code of Civil Procedure, is in this last-mentioned chapter, and is as follows:—

“ The limitations prescribed in this chapter apply to actions brought in the name of the state, or for the benefit of the state, in the same manner as to actions by private parties.”

In the case of Piller v. S. P. R. R. Co., 52 Cal. 42, it was held that subdivision 1, section 339, Code of Civil Procedure, is applicable to all actions at law, not specially mentioned in other portions of the statute. The effect of this must be that all actions at law other than for the recovery of real property are barred by some provision of chapter 3, Code of Civil Procedure, unless, of course, expressly excepted from its operation by that or some other statute. There can be nothing in the suggestion that the same kind of action as this is cannot be prosecuted by a private party, and therefore, under section 345, the limitation cannot apply. There is no such requirement in that section. The limitation is to apply in the same manner. Therefore, if we find that the action brought by the state is within the terms of the statute, interpreted by precisely the same rules which would be applicable if the suit were brought by a private party, the action is barred. Under this rule there can be no doubt that the statute is applicable.