CHARLES HARPER CO v. DE WITT MORTGAGE REALTY CO

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District Court of Appeal, Second District, Division 1, California.

CHARLES F. HARPER CO. v. DE WITT MORTGAGE & REALTY CO. et al.†

Civ. 11213.

Decided: May 28, 1937

Henry O. Wackerbarth, of Los Angeles, for appellant. Porter & Sutton, of Los Angeles, for respondents.

The plaintiff recovered a money judgment in March, 1928. To secure a stay of execution during their appeal, the defendants furnished an undertaking providing, in effect, as required by section 942 of the Code of Civil Procedure, that if the judgment was affirmed and the defendants did not pay the judgment within thirty days after the filing of the remittitur, then judgment could be entered against them. The judgment was affirmed and the remittitur was thereafter filed August 17, 1931. The judgment was not paid, except in part, and on the 9th day of July, 1936, the plaintiff moved that judgment be entered against those who had signed the undertaking as sureties. From the lower court's order denying its motion, the plaintiff has appealed. We have reached the conclusion that this order should be affirmed.

The plaintiff had its choice of two remedies against the sureties, when thirty days had passed after the filing of the remittitur and the judgment had not been paid. It could have moved without notice for a judgment against the sureties. Duerr v. Sloan (1920) 50 Cal.App. 512, 195 P. 475; Roberts v. Fitzgerald (1928) 94 Cal.App. 747, 271 P. 1110. By its terms section 942, supra, seems more concerned with providing this summary remedy than it does in creating a liability. The remedy is provided because of the liability on the part of the sureties which is fairly to be understood, though not expressed in the section. Note LaFleur v. M. A. Burns Lumber Co. (1922) 188 Cal. 321, 205 P. 102. There is no indication that the summary remedy is intended to be exclusive; an independent action may doubtless be brought. 3 Am.Jur. pp. 775, 776.

We find no statutory justification for the order denying plaintiff's motion. The suggestion is made that because section 581a of the Code of Civil Procedure (as amended by St.1933, p. 1869) requires the dismissal of an action where, summons having been served and no answer filed, judgment is not entered within three years, that that should be the rule in such a case as ours. The answer to this suggestion we find to be obvious: the Code section referred to does not by its terms apply to this case and to make it do so would be judicial legislation in which we may not indulge.

It is argued more earnestly, further, that the motion that judgment be entered against the sureties was properly denied because of the limitations prescribed either by section 337 of the Code of Civil Procedure (as amended by St.1933, p. 2116), or by section 343 of the same Code. These two Code sections are introduced by the statement in the preceding section 335: “The periods prescribed for the commencement of actions * * * are as follows:” Then in section 337, supra, a four–year period is fixed for the bringing of actions upon an obligation or liability founded upon an instrument in writing, and in section 343, supra, a like term is named for “an action for relief not hereinbefore provided for.”

While the word “action” as used in these Code provisions may well include a special proceeding of a civil nature (section 363, Code Civ.Proc.), even that broadening of the word does not bring the relief here sought by the plaintiff within the purview of our statute of limitations. In Hawley v. Gray Bros., etc., Co. (1900) 127 Cal. 560, at page 561, 60 P. 437, it was stated: “The entry of judgment against the sureties upon an appeal bond is not a special proceeding within the definition of section 23, Code Civ. Proc., but is a part of the procedure in the original action * * * and is in sequence of the judgment rendered therein.” By executing their undertaking the sureties become, in legal effect, parties to the pending action. Meredith v. Santa Clara Min. Ass'n of Baltimore (1882) 60 Cal. 617; Hawley v. Gray Bros., etc., Co., supra, 127 Cal. 560, 60 P. 437; LaFleur v. M. A. Burns Lumber Co., supra, 188 Cal. 321, 205 P. 102. It follows that the Code limitations fixing the time within which actions may be brought do not apply.

However, because there is no time limit placed by statute upon the making of a motion for summary judgment, it does not follow that the motion can be made at any time, five, ten, or twenty years, after the right to have judgment entered has ripened. We find enough similarity between the right to enter judgment, given in an undertaking required by section 942, supra, and the right to have judgment entered given in voluntary contracts, so that the rule limiting the entry of judgments in the latter type of cases furnishes a guide in our case. As stated in the opening paragraph of an annotation on the subject in 21 A.L.R. 774: “It appears to be well established that a warrant of attorney to confess judgment on an obligation does not authorize a confession of judgment after an action on the obligation has become barred by a statute of limitation.” Subsequent to the cases reviewed in the annotation, we find Gordon v. Heller (1935) 271 Mich. 240, 260 N.W. 156, and Williams v. Wilborne (1936) 170 Tenn. 289, 95 S.W.(2d) 41. In recognition of the adherence to this rule by the Illinois courts, an Illinois consent judgment, entered after the statute had run, was held invalid in First Nat. Bank v. Terry (1930) 103 Cal.App. 501, 285 P. 336. It is our opinion that a summary judgment may not be entered on an undertaking given pursuant to section 942, supra, after the statute has run, for the commencement of an independent action against the sureties.

We need not decide whether the governing statute is section 338 of the Code of Civil Procedure (as amended by St.1933, p. 878), naming three years as the term for an action on a liability created by statute, or section 337, supra; in either event the statute had run when plaintiff made its motion. The cause of action against the sureties is either created by statute or by written contract; it is not to be confused with the obligation of the principal which is on the judgment. See Gaffigan v. Lawton (1934) 1 Cal.(2d) 722, 37 P.(2d) 79.

The order appealed from is affirmed.

I concur, for the reason that I believe the liability of the sureties was limited to a period of four years from the date of the incurrence or fixing of the liability under the terms of the written instrument. The sureties as such became liable thirty days after the judgment in the original action became final, but appellant waited for more than four years after the sureties' obligation to pay under the terms of the written instrument became fixed, before attempting to enforce such liability. Therefore, I believe, under the authorities cited in the foregoing opinion, that the written instrument or bond became unenforceable after the expiration of the period of four years from the date that the sureties were obligated to pay the judgment, although the judgment itself would be enforceable against the principals, who were the original defendants in this case, for the full period of five years from the date it became final.

BISHOP, Justice pro tem.