Opinion
[Syllabus Material] [Syllabus Material] Rehearing Granted 19 Cal. 97 at 101.
Appeal from the Fifth District.
Suit on a judgment obtained against one Cook in his lifetime. The complaint sets up the facts stated in the opinion of the Court; and further, that the amount of the judgment was $ 3,523, with interest on $ 2,056 thereof at the rate of ten per cent. per annum, and interest on $ 1,467 thereof at the rate of ten per cent. per month from the rendition of the judgment; and that afterwards, on the sixteenth of January, 1851, Cook paid $ 1,700 to be credited on that portion of the judgment bearing interest at ten per cent. per annum; that the claim presented to defendants at administrators of Cook's estate was $ 14,885. There is no allegation that the notice to creditors was published as required by statute. Defendants demurred to the complaint, on the grounds: 1st, that more than five years elapsed between the date of the judgment sued on and the commencement of this suit; 2d, that it is not alleged that the claim was presented to the administrators within ten months from December 4th, 1856, when letters were issued; 3d, that the action was not commenced within five years after the cause of action accrued, and within one year after letters of administration were issued to defendants. Overruled, and judgment final for plaintiff, to be paid in due course of administration, for $ 19,179.30, with interest on $ 18,459.15 thereof at the rate of ten per cent. per month from the date of judgment, August 23d, 1860, and on seven hundred and twenty-six dollars and fifteen cents thereof at the rate of ten per cent. per annum from the same date, and costs. Defendants appeal.
COUNSEL:
I. This in an action upon a judgment, and the cause of action accrued at the rendition of the judgment in December, 1850, and hence the action was barred in five years from that date. (Probate Act, sec. 135; Limitation Act of 1850, sec. 17; Ames v. Hoy , 12 Cal. 11; Stuart v. Lander , 16 Id. 372.) Where the statute begins to run, no subsequent disability stops it. (4 Bac. Abr. Limitations E, 5, note; 2 Greenl. Ev. sec. 439; 13 Wend. 267; 12 Sm. & M. 9; 7 Harr. & Johns. 14.)
II. The action was barred by the lapse of more than one year after letters of administration to defendants. (Limitation Act of 1850, second clause, sec. 24; Probate Act, secs. 228, 244, 128-130; Danglada v. De la Guerra , 10 Cal. 386.)
III. The computation of interest is wrong.
Hall & Huggins, Appellants, in person.
W. T. Wallace, for Respondent.
I. This is not an action upon a judgment, but simply a suit to compel the recognition of a claim against an estate; and plaintiff had a right to present the judgment against Cook to the defendants as administrators at any time within ten months after the first publication of a notice to creditors of the estate to present their claims. (Wood's Digest, art. 2284, secs. 128-130; art. 2334, sec. 239.) But the complaint does not aver that such notice was ever published; and hence does not show prima facie that the cause of action is barred, and the demurrer was properly overruled. (12 Cal. 311.)
JUDGES: Baldwin, J. delivered the opinion of the Court. Field, C. J. and Cope, J. concurring.
OPINION
BALDWIN, Judge
A rehearing having been granted and the cause reargued, Baldwin, J. delivered the opinion of the Court--Cope, J. concurring.
On reargument, the judgment of the Court below is reversed, and the cause remanded, for the purpose of correcting the computation of interest according to the principles of the former opinion in the case. The costs of this Court to be paid by the respondent. The opinion formerly rendered is adopted as explanatory of the grounds of this decision.