Legal Opinion

Allen v. Marshall

California Supreme Court

Decided July 1, 1867PublishedCited by 2 opinions

Appeal from the District Court, Seventh Judicial District, Solano County. On the 28th day of February, 1865, the plaintiff filed his complaint to recover the amount of a promissory note dated March 1st, 1861, and payable on demand. On the 9th of June, 1865, a summons was issued, and thereafter defendant demurred to the plaintiff’s complaint.

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Appeal from the District Court, Seventh Judicial District, Solano County. On the 28th day of February, 1865, the plaintiff filed his complaint to recover the amount of a promissory note dated March 1st, 1861, and payable on demand. On the 9th of June, 1865, a summons was issued, and thereafter defendant demurred to the plaintiff’s complaint. The complaint was amended so far as necessary to meet the point taken upon said demurrer, and subsequently the defendant answered, setting up the Statute of Limitations as a defense, upon an allegation that the original complaint had not been duly filed;…

1Opinion of the Court

By the Court, Sawyer, J.:

Action on a promissory note; defense—Statute of Limitations. The note was executed March 1st, 1861, and bears that date upon its face. It is payable on demand. 'The original complaint appears by the record—the filing indorsed thereon attested by the signature of the Clerk—to have been filed on the 28th of February, 1865. This is within the four years prescribed by the statute, and is in time. It is averred in the answer that no summons issued till June, 1865, after the four years had expired. Whether this averment is true, or not, can make no difference, for, under…

2Cases cited2 opinions

  1. Pimental v. City of San FranciscoCalifornia Supreme Court · 1863
  2. Sharp v. MaguireCalifornia Supreme Court · 1862

3Cited by2 opinions

  1. Link v. JarvisCalifornia Supreme Court · 1893
  2. Domenech v. VergesCourt of Appeals for the First Circuit · 1934

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