Bliss v. Sneath

California Supreme Court Jan 5, 1898 No. S. F. No. 557Published

Before: Beatty, Harrison

AI Brief

AI-generated · verify before citing

Holding. The statute of limitations is a special defense that must be affirmatively pleaded or raised in the trial court to be considered on appeal; otherwise, it is deemed waived. A failure to make a finding on the statute of limitations is not reversible error when the record does not show the defense was invoked below.

Issues

Whether the statute of limitations is automatically raised by the provision in section 462 of the Code of Civil Procedure that new matter in an answer is 'deemed controverted.'
Whether a judgment can be reversed for failure to make a finding on the statute of limitations when the record does not show the defense was raised in the trial court.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The statute of limitations is a special defense which may be either relied on or waived at the election of a party entitled to avail himself of it, and, if not specially made, will be deemed to have been waived.”

“Being a defense which is personal in its nature, it must be affirmatively shown to the court that it is relied upon by the party as a defense to the action”

“As this defense to the counterclaim does not appear upon the record, we must assume that it was not made in the court below.”

Synopsis

Statute op Limitations—Counterclaim—Pleading—Demurrer—Defense to Counterclaim—Record upon Appeal—Presumption.—The statute of limitations is a personal privilege which is waived, unless specially pleaded; and, where a counterclaim appears upon the face of the answer to be barred by the statute of limitations, it must be specially pleaded to by demurrer on that ground, else it is waived; and if it does not so appear, in order that it may be availed of upon appeal as a defense to the counterclaim, and that reversible error may be shown in sustaining the counterclaim, it is incumbent upon the plaintiff to show in the record upon appeal that the statute of limitations was urged in the court below and relied upon as a defense to the counterclaim, else it will be assumed upon appeal that no such defense was made or claimed.

Id.—Action for Rent—Counterclaim for Division Pence—Period of Limitation-Statutory Liability.—In an action for rent, a counterclaim for a division fence constructed by the defendant upon contiguous land and used by the plaintiff is upon a liability created by statute, and is not barred short of three years from the date of the inclosure of plaintiff’s land whereby the division fence was utilized; and it is immaterial that it may be deemed a cause of action upon contract. within the law of setoff and counterclaim.

Opinion — Harrison

HARRISON, J. The plaintiff seeks by this action to recover the rent of certain lands demised by him to the defendant. The defendant malees no issue upon his liability for the amount claimed, but alleges in his answer that the plaintiff is only the agent of his wife, who is the owner of the land, and prosecutes the action in her behalf; that the demised land is contiguous to certain lands of his own; that he had constructed a division fence between the contiguous tracts, and that subsequently thereto, and prior to the commencement of the action, the plaintiff’s wife had inclosed her tract and made use of said division fence, and that by virtue of section 841 of the Civil Code, she thereby became liable to him for her just proportion of the division fence. He therefore pleads the amount of this liability as a defense or counterclaim to the demand of the plaintiff. The cause was tried by the court, and findings of fact were made in accordance with these averments, fixing the amount of eight hundred and ninety-one dollars and ten cents as the just proportion of the value of the fence to be paid by her, and rendered judgment in favor of the plaintiff for the difference between the amount claimed in the complaint, and this last-named sum. The plaintiff has appealed from the judgment, and brings the appeal here upon the judgment-roll, without any bill of exceptions.

In support of his appeal, the plaintiff contends that the court should not have allowed any portion of the counterclaim pleaded by the defendant, for the reason that it was barred by the statute of limitations. The fence was constructed by the defendant in 1877, and the plaintiff’s wife inclosed her tract and made use of the division fence between May 21, 1888, and June 1, 1888. The present action was commenced May 15, 1891, and on May 18, 1891, the defendant commenced an action against the plaintiff and his wife to recover for her portion of the value [528]oE the division fence. This latter action was pending at the time the present action was tried. No plea of the statute of limitations was made by the plaintiff to this claim, and it does not appear from the record that the plaintiff made any claim of this nature before the superior court. He, however, contends that the statute is deemed to have been pleaded by virtue of the 'provision of section 462 of the Code of Civil Procedure, viz: “The statement of any new matter in the answer in avoidance, or constituting a defense or counterclaim, must, on the trial, be deemed controverted by the opposite party.”

Bliss v. Sneath

AI Brief

Synopsis

Opinion — Harrison

More from California Supreme Court

Related research

Concurrence — Beatty

AI Brief