McCracken v. Pacific Commercial Co.
Before: Thornton
Synopsis
Appeal—Bill of Exceptions—Statute of Limitations.—Evidence of facts relied on to overcome the statute of limitations, set up as a defense, must appear in the bill of exceptions in order to be considered on appeal.
THORNTON, J. Action of ejectment against S. C. Hastings and other defendants, who were his tenants.
If the statute of limitations could be relied on as a defense in this case, our opinion is that such defense is made out.
It is contended that the statute of limitations did not run as to the lot sued for, for the reason that it was held by the city and county of San Francisco for the public use.
There is no evidence of this in the bill of exceptions, and no such fact is found. This being the case, no such fact is before us for consideration.
[173]If any such, matter appeared in evidence, we must hold, as the case is presented to us, that it was negatived by the court below. Under these circumstances we are of opinion the contention of the appellant cannot be maintained, and we cannot say that the court below was wrong in holding that plaintiff’s action was barred by the statute of limitations.
We find no error in the record, and the judgment and order are affirmed.
We concur: Myrick, J.; Sharpstein, J.
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