Griffith Co. v. Kelly

California Court of Appeal Jun 16, 1942 No. Civ. No. 2847; Civ. No. 2848Published

Before: Marks

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Holding. The court held that the removal of the specific two-year statute of limitations from the Improvement Act of 1911 did not create an unlimited period for filing foreclosure actions, but instead triggered the application of the general statutes of limitations found in the Code of Civil Procedure.

Issues

Whether the omission of a specific limitation period in the 1927 amendment to the Improvement Act of 1911 created an unlimited time to file foreclosure actions.
Whether the general statutes of limitations in the Code of Civil Procedure apply to foreclosure actions under the Improvement Act of 1911 when no specific limitation is provided.

Disposition. reversed

Quotations verified verbatim against the opinion

“The rule established in this state, however, makes a distinction between the existence of a right and the exercise of a remedy. In other words, a person may be possessed of a right and by reason of inaction or failure to proceed lose his remedy.”

“When that special period of limitation was removed from the statute the express provisions of section 312 of the Code of Civil Procedure were placed in effect and the limitations contained in the following sections must govern here.”

MARKS, J. These are actions to foreclose liens of assessments levied under the Improvement Act of 1911. Each assessment was for an amount less than $25, so no bonds could be issued against the property assessed. The cases were tried together and present identical questions on this appeal, namely, are plaintiff’s causes of action barred by the statute of limitations ?

The assessments became liens on the various parcels of property on January 13, 1930. The action against Kelly to foreclose the liens was filed on October 20, 1940, and against Eva A. Fly and others on October 24, 1940. All defendants pleaded various statutes of limitations both by demurrers and answers. Judgments were rendered for plaintiff and these appeals followed.

Prior to its amendment in 1927, section 23 of the Improvement Act of 1911 provided in part as follows:

“Said warrant, diagram and assessment, shall be recorded in the office of said superintendent of streets. When so recorded the several amounts assessed shall be a lien upon the lands, lots, or portions of lots assessed, respectively, for the period of two years from the date of said recording, unless sooner discharged; ...” (Stats. 1923, p. 115; Deering’s Gen. Laws, 1923, act 8199.)

Section 27 of the same act provided in part as follows:

“At any time after the period of thirty-five days from the day of the date of the warrant, the contractor or his assignee may sue, in his own name, the owner of the land, lots or portions of lots, assessed on the day of the date of the recording of the warrant, assessment, and diagram, or any day thereafter during the continuance of the lien of said assessment, and recover the [741]amount of any assessment remaining unpaid, with interest thereon at the rate of ten per cent per annum until paid.” (Stats. 1923, p. 117.)

These sections were amended in 1927. (Stats. 1927, pp. 1407, 1408; Deering’s Gen. Laws, 1925-1927 Supp., Act 8199.) The amended portion of section 23, important here, read as follows:

“Said warrant, diagram and assessment, shall be recorded in the office of said superintendent of streets. When so recorded the several amounts assessed shall be a lien upon the lands, lots or portion of lots assessed, respectively, and such lien shall so continue until it be discharged of record.”

Griffith Co. v. Kelly

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