Dore v. Thornburgh

Fitzgerald, C. — This action was commenced by plaintiff on the fourth day of October, 1888, to recover upon a judgment given against the defendant on the ninth day of May, 1885, in the Queen’s Bench Division of the High Court of Justice, in England.

The complaint is demurred to on the grounds, — 1. That it does not state facts sufficient to constitute a cause of action; 2. That the alleged cause of action is barred by the provisions of section 339 of the Code of Civil Procedure.

The demurrer was sustained by the court below, and upon plaintiff failing to amend his complaint, judgment [66]final was rendered in favor of defendant. The appeal is taken upon the judgment roll alone.

The objection raised by the first ground of demurrer, that there is no averment in the complaint that the court ever made or gave the alleged judgment, is not well founded. The complaint alleges “ that thereafter, to wit, upon the ninth day of May, 1885, the said plaintiffs signed final judgment in the said action for the said sum of £3,920, in accordance with the terms of the said order, and which said judgment was then and there duly given, made, and entered.” This allegation we think sufficient as against a general demurrer.

Under the second ground of demurrer, the question presented for our determination is, whether this action, which is founded upon a judgment rendered by an English tribunal, .is barred by the statute of limitations within two years.

Subdivision 1 of section 339 of the Code of Civil Procedure, upon which respondent relies in support of her contention that the action is barred within that time, reads as follows:—

“1. An action upon a contract, obligation, or liability, not founded upon an instrument of writing, or founded upon an instrument of writing executed out of the state.”

That the judgment herein is not such an instrument in writing (Patten v. Ray, 4 Cal. 287) is evident from the use here made of the word “ executed,” which must be construed to apply to the act of the party sought, to be charged. But it is a contract in writing in the full sense of the term “ contract or obligation” as employed by our statute (Stuart v. Lander, 16 Cal. 375; 76 Am. Dec. 538; Reed v. Eldredge, 27 Cal. 346; Wallace v. Eldredge, 27 Cal. 498; Bean v. Loryea, 81 Cal. 152); and, as such, is not embraced in the two years’ limitation prescribed by the provisions of that subdivision of the section.