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eight years after the date of his certificate of discharge from the state hospital, although the proceeding was begun within the statutory period after his restoration to capacity pursuant to section 1766, where the petition failed to show that there had been any previous guardianship proceedings.-Knorp v. Board of Police Commrs., 31 Cal. App. 539, 161 Pac. 12.

Action to enforce agreement to make a will.-In an action to enforce a contract in the nature of an agreement to make a will in favor of the promisee and the promisor conveyed property to others in violation thereof, the cause of action on the part of the promisee did not accrue until the promisor died without making the

$ 344.

1. Limitation of action-Mutual accounts. -An account stated and mutually accepted by the parties does give rise to a new cause of action, and the statute of limitations on that cause of action begins to run not as of the date of the items of account but from the time of the agreement that the statement is correct.-Cowell v. Snyder, 171 Cal. 291, 152 Pac. 920.

8 348. NO LIMITATION WHERE MONEY OR PROPERTY DEPOSITED IN BANK. To actions brought to recover money or other property deposited with any bank, banker, trust company, building and loan association, or savings and loan society there is no limitation.

[Not applicable to banks, etc.) This section shall not apply to banks, bankers, trust companies, building and loan associations, and savings and loan societies which have become insolvent and are in process of liquidation and in such cases the statute of limitations shall be deemed to have commenced to run from the beginning of the process of liquidation; provided, however, nothing herein contained shall be construed so as to relieve any stockholder of any banking corporation or trust company from stockholder's liability as shall, at any time, be provided by law.

a

History: Enactment approved March 24, 1874, Code Amdts. 1873-4, p. 293; amended April 19, 1915, Stats, and Amdts. 1915, p. 684; June 1,

1917, Stats. and Amdts. 1917, p. 1573. In effect July 31, 1917. $ 350.

band has deserted the wife after the acts

of malpractice, the statute of limitations 1. Effect of filing amended or supple

does not begin to run against the wife's mental complaint-In an action to recover

right to bring the action in her own name for the rent of agricultural land, and for

until after the desertion.-Mortell v. Los the price of rock quarried upon the prem

Angeles College of Osteopathy, 30 Cal. App. ises and used in the manufacture of lime.

422, 158 Pac. 508. the filing of an amended and supplemental complaint setting up an account stated is

8 353. not subject to demurrer on the ground that

1. the new cause of action is barred by the

Death before limitation expires-Constatute of limitations, where the account

struction.—No provision is made excepting arose out of the identical transactions case where the party who would have pleaded in the original complaint.-Cowell

been entitled to sue dies before the cause v. Snyder, 171 Cal. 291, 152 Pac. 920.

of action has accrued. Sullivan v. Gillon, See, also, ante, C. C. P. pt., $ 337, par. 5.

26 Cal. App. 421, 147 Pac. 215. 8 352.

$ 356. 1. Action by married woman (subd. 4).

1. Action stayed by injunction. The statUnder the common law, where upon mar

ute of limitations does not run during the riage the legal rights of a woman were sus

period when the commencement of an action pended, the statute of limitations for her is stayed by injunction.-Wolf v. Gall, 174 protection was also suspended. In modern Cal. 140, 162 Pac. 115. times the wife, being freed from the common law disabilities, the legislatures have cor

$ 359. respondingly provided that the statute may 1.. Limitation of actions against officers be made to run against her. In an action or stockholders - Construction.-An action by a married woman to recover damages for by a depositor in a bank against a stockpersonal injuries, the husband and wife are holder is barred if not brought within three necessary parties, and she is entitled to the years after the date the deposit was made. benefit of this section.-Moody v. Southern --Gardiner v. Royer, 167 Cal. 238, 139 Pac. 75. Pac. Co., 167 Cal. 786, 141 Pac. 388.

2. This section is not in conflict with sec2. Inasmuch as the husband is a neces- tion 3 of article XII of the constitution sary party to an action for damages for making each stockholder individually remalpractice upon his wife, where the hus- sponsible for liabilities incurred during the

time he is a stockholder. There is no merit superintendent could appeal in his official in the claim that it was thus repealed by name and capacity from a judgment directthe constitution because repugnant thereto. ing a sale for the benefit of the disputed –Gardiner v. Royer, 167 Cal. 238, 139 Pac. 75. bonds.-Mercantile Trust Co. v. Miller, 166

3. The barring of an action at the expira- Cal. 563, 137 Pac. 913. tion of three years from the time the liability was created is a marked exception to $ 370. the general rule which measures the period

MARRIED WOMAN AS PARTY, of limitation from the accrual of the cause

1. Construction of subdivision 1. of action.-Royal Trust Co. v. MacBean, 168 Cal. 642, 144 Pac. 139,

2. --Amendment of 1913. 4. The words "tv enforce a liability cre

3, 4. Action for personal injuries--Parties.

5. —Where wife lives separate. ated by law" mean liabilities in the nature

6. -Where wife deserted. of penalties or forfeitures, only.-Whitten v. Dabney, 171 Cal. 621, 154 Pac. 312.

1. Construction of subdlvision 1.-While 5. The statute of limitations begins to subdivision 1 of section 370 of the Code of run against actions to enforce the “liability Civil Procedure permits a married woman created by law" of stockholders of corpora- to sue alone in an action concerning her tions from the time of the creation of the separate property, it does not provide that liability, not from the discovery of the she may be sued alone.--Horsburgh v. Mufacts creating such liability. -- Johnson v. rasky, 169 Cal. 500, 147 Pac. 147. Kinkel, 29 Cal. App. 78, 154 Pac. 487.

2. -of amendment of 1913.—The amend6. The liability of stockholders of a cor- ment of 1913 whereby the wife may sue poration for damages for a breach by the alone does not apply to an action begun corporation of the terms of a lease of land before the adoption of the amendment.for the purpose of exploring for and devel- Moody V. Southern Pac. Co., 167 Cal. 786, oping oil thereon is not created at the time 141 Pac. 388. of the execution of the lease, but at the 3. Action for personal injuries—Parties. time of the breach.--Johnson v. Kinkel, 29 -In an action for damages for personal Cal. App. 78, 154 Pac. 487.

injuries sustained from a defective condition

of a wife's separate property, the husband 8 360.

is a necessary party defendant, and where

the action is dismissed as to him for failure 1. Acknowledgment or new promise.

to serve him with the summons within the Under section 360 of the Code of Civil Pro

statutory time, she is also entitled to have cedure a writing signed by the party to

the action dismissed as to her, and manbe charged, containing an acknowledgment

damus will lie for such purpose.-Horsburgh of the existence of an indebtedness, is sufficient to take the indebtedness out of the

v. Murasky, 169 Cal. 500, 147 Pac. 147.

4. Mandamus is the proper remedy to operation of the statute of limitations and

procure the dismissal of the action as to the make it enforceable as from the date of

wife under such circumstances, there the acknowledgment. — In re Blankenship, 220 Fed. 395.

is no plain, speedy and adequate remedy

available her. — Horsburgh v. Murasky, -Character of acknowledgment.-The

169 Cal. 500, 147 Pac. 147. acknowledgment of a debt under this sec

5. -Where wife lives separate.-Where tion must be a distinct, unqualified, uncon

an action is brought against a married woditional recognition of an obligation for

man, living separate from her husband, to which the person making such admission is

recover real property, the husband, who has liable.-Powell V. Retch, 166 Cal. 329, 136

deserted her, is not a necessary party.Pac. 55.

Porter v. Johnson, 172 Cal. 456, 156 Pac, 1022.

-Where wife deserted.-A husband is 8 368.

a necessary party to an action by his wife 1. Assignment of thing in action, etc.- for personal injuries to her if living with Construction.-It would seem to follow that her, and if he deserts her after the injury, in every instance other than the one speci- he is a necessary party until the date of his fied in the exception the general rule is desertion.-Mortell y. Los Angeles College of applicable. The transfer of a nonnegotiable Osteopathy, 30 Cal. App. 422, 158 Pac. 508. instrument or of a negotiable instrument after maturity or before maturity to one not

8 372. taking in good faith or for value is not

1. Guardian ad litem. — In action protected.—McKenney v. Ellsworth, 165 Cal.

prosecuted by a guardian ad litem it is 326, 132 Pac. 75.

unnecessary under this and the following

section to prove that the guardian had filed 8 369.

a bond, taken the oath and received letters 1. Includes superintendent of banks. — under the seal of the court. It is sufficient The superintendent of banks who had taken to show that she or he had filed a petition charge of a bank holding some bonds whose for appointment and that the court had validity was disputed and who was engaged made an order appointing her or him.in liquidating its affairs was a proper party Foley v. Northern California Power Co., 165 as a trustee and entitled to appeal in an Cal. 103, 130 Pac. 1183. action by the bank to foreclose the mort- 2. The code sections providing for the gage which was secured by the bonds. Such appointment of guardians ad litem are not

as

an

applicable to probate proceedings.-Estate or nonprobability of resistance on the part of Lamb, 6 Cof. Prob. Dec. 432.

of the plaintiff.—Valencia v. Milliken, 31 3. Guardian ad litem of an incompetent Cal. App. 533, 160 Pac. 1086. person is authorized, subject to the approval 7. In such an action it is proper to perof the court, to compromise and agree to the mit testimony as to whether the plaintiff judgment to be entered in the suit pending became unconscious at any time during the for or against the ward, and notification to assault, and as to her physical condition at the ward personally of the proposed com- the time of the trial as compared with that promise is not legally necessary.-Eggers v. at the time of the assault.—Valencia v. MilKrueger, 236 Fed. 852.

liken, 31 Cal. App. 533, 160 Pac. 1086. 4. Receipt by a guardian ad litem effect- 8. Instructions.-In an action for rape, an ing a compromise for his ward of compensa- erroneous instruction that the chastity of tion for his services is not evidence of any the plaintiff is only material for the purpose impropriety or breach of good faith where of showing the damages is not prejudicial the court found the same was reasonable, where the defense was an alibi and not and ordered it to be paid.--Eggers v. Krue- based on the fact that the plaintiff had conger, 236 Fed. 852.

sented to the act. --Valencia V. Milliken, 31

Cal. App. 533, 160 Pac. 1086. § 373

9. In such an action it is peculiarly a 1. Guardian ad litem - - Validity of ap

matter for the trial court to determine pointment.-Order approving a guardian ad

whether it should instruct the jury to dislitem for an incompetent person after notice regard the remark of plaintiff's attorney and an opportunity to be heard is binding in addressing the jury, calling their attenwhere there is no showing that the order

tion to the child to which the plaintiff gave of such appointment was brought about by

birth, and asking that it be compared with any misrepresentation or fraud.-Eggers v. the defendant.-Valencia v. Milliken, 31 Cal. Krueger, 236 Fed. 852.

App. 533, 160 Pac. 1086.

10. An instruction that "compensatory 8 374.

damages should be given in such amount UNMARRIED FEMALE-ACTION FOR

as in your judgment will fairly compensate

her for the injury she has received by reaRAPE.

son of the act complained of, taking into 1. Civil action for,

consideration her physical suffering and dis2-7. Evidence.

ability during pregnancy and in child birth, 8–10. Instructions.

if you find the pregnancy was the result 1. Civil action for.-In an action to re- of the defendant's act, also her mental sufcover damages for a criminal assault upon

fering, shame and disgrace, and her loss a single woman, a preponderance of the of social standing, and all other harm you evidence is all that is required to establish find she suffered as the natural result of a fact.- Valencia V. Milliken, 31 Cal. App. the wrong," is not an invasion of the right 533, 160 Pac. 1086.

of the jury, telling it that damages should 2. Evidence.--In a civil action for rape,

be awarded to plaintiff regardless of as the result of which the plaintiff gave

whethe she gave her consent or not, and birth to a child, where, there was no con- when read in connection with other instructroversy as to the birth of the child, it is tions, and also as stated therein, the jury competent for the plaintiff to testify that is directed to compensate her for the wrong the defendant was the father thereof.- by reason of the act complained of.- ValenValencia V. Milliken, 31 Cal. App. 533, 160 cia v. Milliken, 31 Cal. App. 533, 160 Pac. Pac. 1086.

1086. 3. In a civil action for rape, it is not prejudicial error to permit a physician to 8 377. testify as to the period of gestation.--Valen

DEATH FROM WRONGFUL ACT. cia V. Milliken, 31 Cal. App. 533, 160 Pac.

1-3. Construction of section. 1086.

4, 5. Amount of recovery. In civil action for rape, testimony by

6, 7. Abatement and survival of action. the plaintiff that she remained on friendly terms with the defendant, as he had prom

1. Construction of section.-Statutes like ised her father he would marry her, is this section create a right entirely distinct material, and properly admitted in evidence. from that vested in the injured person be- Valencia V. Milliken, 31 Cal. App. 533, fore his death.-Western Metal Supply Co. 160 Pac. 1086.

v. Pillsbury, 172 Cal. 407, 156 Pac. 491. 5. In a civil action for rape, a statement 2. This section was not abrogated so far by a witness that he had seen the plaintiff as concerns actions by the representatives and a third person at certain springs is of deceased employees by the subsequent properly stricken out as immaterial.-Valen- amendment of section 1970 of the Civil Code, cia V. Milliken, 31 Cal. App. 533, 160 Pac. providing that in cases of negligent death 1086.

his personal representatives shall have a 6. In a civil action for rape, where the right of action against the employer, and chastity of the plaintiff was made an issue, recover damages on behalf of the widow, evidence as to the plaintiff's chastity is ma- children, and enumerated relatives. This terial both as to the measure of damages section still remains in full force and gives and also as tending to show the probability the right of action and fixes the measure

of recovery in all cases. Section 1970 of the to inject herself therein.-Holmes v. O'Brien, Civil Code is to be construed with this sec- 28 Cal. App. 264, 151 Pac. 1151. tion and not as superseding it.-Gonsalves v. Petaluma & Santa Rosa R. Co., 173 Cal.

$ 381. 264, 159 Pac. 724.

1. Who may unite as plaintiffs.-In an 3. A cause of action founded upon the action to remove a cloud upon and quiet employer's neglect in furnishing the em- the title to a tract of land owned by several ployee a safe place in which to do his work

persons in severalty, they may, under the is one existing under this section and not provisions of section 381 of the Code of Civil one under section 1970 of the Civil Code.

Procedure, unite as plaintiffs, where they Gonsalves v. Petaluma & Santa Rosa R. Co., all claim under a common source of title. 173 Cal. 264, 159 Pac. 724.

Superior California Fruit Land Co. v. Gross4. Amount of recovery.-Pecuniary dam- man, 32 Cal. App. 357, 162 Pac. 1046. age is the limit of recovery and the amount allowed by the jury must bear some reason

8 385. able relation to the pecuniary loss shown

DEATH OR MARRIAGE-ABATEMENT OF by the evidence.—Dickinson v. Southern Pac.

ACTION. Co., 172 Cal. 727, 158 Pac. 183.

1-4. Construction of section. 5. A plaintiff suing under a statute like

sucthis section "does not represent the right

5. Proceeding by representative or of action which the deceased would have

cessor in interest-By administrator. had if the latter had survived the injury,

6. —By attorney and assignee. but can recover only for the pecuniary loss

7, 8. —By cotenant. suffered by the plaintiff [or the heirs repre

9. —By executor or executrix. sented by him) on account of the death

10. -By transferee after action begun. of the relative; that sorrow and mental 1. Construction of section.-If this secanguish caused by the death are not ele- tion is applicable to corporations it does ments of damage; and that nothing can be not authorize the continuance of the action recovered as a solatium for wounded feel- against the corporation itself, but only ings.”—Dickinson v. Southern Pac. Co., 172 against its representative or successor in Cal. 727, 158 Pac. 183.

interest brought in on motion.—Lowe v. Su6. Abatement or survival of action.-The perior Court, 165 Cal. 708, 134 Pac. 190. common law rule as to abatement of per- 2. This section applies only where the sonal actions by death has not been changed cause of action survives and does not change in this state, and the cause of action for any existing rule as to survival of causes damages for the death of a person, not a of action.-Clark v. Goodwin, 170 Cal. 527, minor, caused by the wrongful act or neg- L. R. A. 1916 A 1143, 10 N. C. C. A. 1022, 150 lect of another given to his heirs or per- Pac, 357. sonal representatives by section 377 of the 3. This section does not attempt to define Code of Civil Procedure, abates with the the causes of action which survive, but dedeath of the wrongdoer prior to action scribe what proceedings shall follow the brought, and such an action can not be

death or assignment of a cause of action maintained against his personal representa- which does survive and is assignable.tives.-Clark v. Goodwin, 170 Cal. 527, Estate of Baker, 170 Cal. 578, 150 Pac. 989. L. R. A. 1916 A 1143, 10 N. C. C. A. 1022, 150 4. The contest of a will is a special proPac. 357.

bate proceeding and this section is appli7. Section 377 of the Code of Civil Pro- cable thereto by virtue of section 1713.— cedure, which provides that “when the death Estate of Baker, 170 Cal. 578, 150 Pac. 989. of a person not being a minor is caused by 5. Proceeding by representative or Sucthe wrongful act or neglect of another, his cessor in interest-By administrator.—Where heirs or personal representatives may main. a plaintiff to enforce a contract in the natain an action for damages against the per- ture of an agreement to make a will in his son causing the death, or if such person favor dies before the case comes to trial be employed by another person who is re- the action may be continued by his adminsponsible for his conduct, then, also against istrator, who is also his heir, in both his such other person," modifies the common

representative and individual capacity. law only to the extent of giving a right

Rogers v. Schlotterback, 167 Cal. 35, 138 of action for damages caused by the death

Pac. 728. of a person, to his heirs, or to his personal

As to proceeding by executor, or executrix, representatives solely for the benefit of his

see post, par. 9, this note. heirs, and in no way purports to affect the

-Attorney and assignee.-- Where an well settled common law rules as to abate

attorney takes an assignment to himself ment of personal actions by death. Clark

after a judgment recovered for his client, v. Goodwin, 170 Cal. 527, L. R. A. 1916A 1143,

he may be substituted in the place of the 10 N. C. C. A. 1022, 150 Pac. 357.

client upon suggestion of the latter's death.

--Potts v. Paxton, 171 Cal. 493, 153 Pac. 957. § 380.

7. -By cotenant.-A cotenant who con1. Determining conflicting claims to title veys his interest pending a suit for partition -McEnerney Act.—Where, in a proceeding may make a motion in the interest of his under the McEnerney Act, a person inter- grantees to reopen the case.-East Shore ested in the real property is not made a Co. v. Richmond Belt Ry., 172 Cal. 174, 155 party to the proceeding, she is not bound Pac. 999.

8. Such a motion, by virtue of section 385 by the pleadings and proof of the defenof the Code of Civil Procedure, may be made dant, or by the suggestion of the fact on by a grantor which, by its conveyances, has the part of the plaintiff, that the names of parted with its entire interest.-East Shore the trustees of the corporation should apCo. v. Richmond Belt Ry., 172 Cal. 174, 155 pear in the place of the names of the corPac. 999.

poration itself as a party plaintiff, and -By executor or executrix. — In an when it clearly appears that the cause of action to enforce a lien the executrix of a action is unchanged and that the real pargrantee to whom the property in contro- ties in interest remain the same, and that versy had been transferred pendente lite, the meritorious defenses of the defendant the grantee having died after the commence- will be unaffected, and that the only purment of the action, may appear and move pose and effect of the proposed amendment to vacate a judgment of default against his is the mere formal change in the names of grantor.--McKendrick v. Western Zinc Min.

the parties plaintiff without any change in Co., 165 Cal. 24, 130 Pac. 865.

the substantial rights and relations of the As to proceeding by administrator, see real actors in the case, the court should or. supra, par. 5, this note.

der the substitution made, and it is an 10. —By transferee after action begun.-- abuse of discretion for the court to refuse Where a transfer by the plaintiff of prop- so to do.--Kehrlein-Swinerton Construction erty in controversy occurs after the begin- Co. v. Rapken, 30 Cal. App. 11, 156 Pac. 972. ning of the action, it is optional with the transferee to continue the action in the

3 387. name of the original plaintiff or to have himself substituted and proceed in his own

1. Intervention Time of application for. name.-Knobloch v. Associated Oil Co., 170

-In an action between two purchasers of Cal. 144, 148 Pac. 938.

corporate stock to have it declared that the

purchaser who conducted the negotiations 8 386.

held a part of the stock issued to him in 1. Substitution of parties Purpose of

trust for the plaintiff, on the ground of mection.—The design of section 386 of the

fraudulent representation made as to the Code of Civil Procedure is to enable a party

amount to be paid for the stock, a bank to who has been sued upon a contract as to

whom the stock had been pledged as securwhich he admits full liability as to the

ity for a loan is properly denied leave to

not amount thereof to show that a third party

intervene, when such application is not named in the action claims some right

made until after judgment, and it is shown

that the president of the bank was acto the proceeds of the contract either by way of complete ownership or that he pos

quainted with the pendency of the action

and understood the nature thereof long sesses a lien against the same; and so show

prior to the time when it came on for trial, ing, to deposit the money due in court and have the third party made defendant in his

and during that time discussed the case stead, thus placing in positions of adver

with the plaintiff.—Mack v. Eummelen, 31 saries the real parties in interest.-Youtz v.

Cal. App. 506, 160 Pac. 1096.

2. Farmers & Merchants' Nat. Bank, 31 Cal.

The law does not contemplate that a App. 370, 160 Pac. 855.

person who has an interest in the matter 2. Substitution of defendant. The dis

in litigation, or in the success of either missal of a will contest because

of the parties, or an interest against both,

of the death of the contestant should be ordered

may wilfully omit to intervene, and then only after substitution of his personal rep

compel a retrial of the case because it has resentative and

judgment

gone against his interests.-Mack v. Eum

running against him.- Estate of Baker, 170 Cal. 578,

melen, 31 Cal. App. 506, 160 Pac. 1096. 150 Pac. 989. 3. The right to contest a will is a chose

$ 388. in action which is assignable, and upon the

ACTION AGAINST ASSOCIATIONS OF death of the person having the right to

PERSONS. wage the contest it passes to his personal representative.-Estate of Baker, 170 Cal.

1. Against members of labor union. 578, 150 Pac. 989.

2. Against partnership. 4. In an action by a wife against a bank 1. Against members of labor union.This to recover money on deposit therein in her section authorizes the maintenance of an acown name, which the bank refused to pay tion to enjoin "picketing" against the memto her for the reason that it had been at- bers of a labor union in their common or tached for a debt of the husband under the associate name, and all members having claim that it was his money, the bank has knowledge of the terms of any injunction, the right under section 386 of the Code of as well as their officers, agents, represenCivil Procedure to have the plaintiff in the tatives, and employees having such knowl. attachment suit substituted as party defen- edge, are bound thereby and guilty of condant in its place upon payment of the

tempt in any wilful violation thereof.money into court. — Youtz v. Farmers & Armstrong v. Superior Court, 173 Cal. 341, Merchants' Nat. Bank, 31 Cal. App. 370, 160 159 Pac. 1176. Pac. 855.

2. Against partnership.

—A

copartner5. When in the course of an action it is ship is a legal entity and may be sued and brought to the attention of the court, either judgment entered against it.-Asbestos Mfg.

by

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