21 Cal. 351, Pimental v. City of San Francisco

Citation:21 Cal. 351
Opinion Judge:FIELD, Judge
Attorney:O. L. Shafter, for Appellant. W. H. Patterson, for Respondents.
Judge Panel:JUDGES: Field, C. J. delivered the opinion of the Court. Cope, J. and Norton, J. concurring.
Case Date:January 01, 1863
Court:Supreme Court of California

Page 351

21 Cal. 351




Supreme Court of California

January, 1863

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Appeal from the Fourth Judicial District.

This is an action to recover the sum of $ 7,900 alleged to have been received from the plaintiff by the city of San Francisco upon an alleged sale of a parcel of certain property, known as the city slip property, situated within the limits of the said city--$ 1,975 on the twenty-seventh of December, 1853, $ 3,950 on the twenty-seventh of February, 1854, and $ 1,975 on the twenty-seventh of April, 1854. The complaint was filed on the twenty-first of April, 1856, and the summons was issued on the twenty-fourth of December, 1860. The facts of the case are sufficiently stated in the opinion of the Court. A more detailed statement of the facts relating to said alleged sale are found in the report of the case of McCracken v. The City of San Francisco (16 Cal. 591) and in the report of the case of Grogan v. The City of San Francisco (18 Id. 590).

In the present case the plaintiff had judgment, and the defendant appeals.


O. L. Shafter, for Appellant.

The bar of the statute is interposed, in the first place, to the whole claim; and, in the second place, to the first twopayments made to and received by the city on the twenty-seventh of December, 1853, and on the twenty-seventh of February, 1854, respectively.

The defense to the whole claim will first be considered. The complaint was filed on the twenty-first day of April, 1856--two years from the payment and receipt of the third and last installment, lacking eight days. The summons was not issued until the twenty-fourth day of December, 1860--four years and about eight months after the filing of the complaint. The statute provision is as follows: " An action shall be deemed to be commenced, within the meaning of this act, when the complaint has been filed in the proper office."

There is nothing in the pleadings, findings, or evidence furnishing the slightest explanation for the plaintiff's protracted delay in taking out the summons. The delay cannot be attributed to any delinquency of the Clerk. When a complaint is filed the summons does not go of course. It is not the duty of the Clerk to issue process until it is applied for. The provision of the Practice Act (Sec. 22) is as follows: " At any time after the filing of the complaint, the plaintiff may have a summons issued." This is decisive to show that the issuance of the summons is a matter left entirely to the plaintiff's direction. We claim, then, this result: That the unexplained interval of four years and eight months lying between the filing of the complaint in this action and the issuance of the summons was by reason of the plaintiffs' omision to call for it alone; and that such omission was the result of choice on their part, and not of necessity, accident, mistake, or fraud on the part of others. Did the statute give the plaintiffs the right to make this choice, thus arbitrarily? Are they relieved of the necessity of making explanations? The answer to be given to these questions depends, to some extent, upon the interpretation of the word " filing," as it is used in the statute.

First --There are but three views possible, and are as follows:

1. That after the filing of the complaint the summons must issue immediately and be immediately thereafter delivered to the officer for service. This view is untenable, without doubt.

2. That the filing of the complaint, ipso facto, puts the claim of the plaintiff beyond the reach of the statute forever.

3. That the complaint having been filed, the party, within a reasonable time thereafter, must take the next step called for by the routine of procedure, viz.: issuance of summons to the Sheriff.

Which of these last two views is the correct one? To the first of the two there is one general objection. It involves an utter abandonment of the policy with reference to which alone Statutes of Limitations are supposed to have been framed; and, in short, leaves the statute without any efficient or intelligible purpose. If the mere filing of the complaint, of itself, takes a claim out of the Statute of Limitations for all time, then it is a Statute of Limitations only in a very narrow sense. It in no sense limits the accumulation of stale claims, nor does it diminish the possibilities of individual and social disquiet connected with suits prosecuted to enforce them. The filing of the complaint does not prevent the death of witnesses or their dispersion; it does not lessen the power of time to work a destruction of papers, nor does it furnish any appliance to aid or forestall the proverbial infirmity of human memory. In short, though the statute is a remedial one in theory, yet it remedies nothing in fact; though passed to correctserious mischiefs, it tolerates and nurses the whole brood.

Under this construction, the statute is not and cannot be in its outcomes a " statute of repose." The maxim " vigilantibus non dormientibus jura subveniunt " is reversed, and in its relations to every description of claim is made to read " dormientibus non vigilantibus jura subveniunt ." The maxim of " interest reipublicoe ut sit finis litium " loses all its ancient dues; and to sum the whole up in a word, a question of great public concern is virtually withdrawn from the control of law, and submitted for determination to the caprice or interested views of a party.

As opposed to this view of the true intent of the statute, we insist that the filing of the complaint commences the action only de bene esse; and if the plaintiff does not use reasonable diligence in the matter of taking the next step, the action must be held, by legal conclusion, not to have been efficiently commenced, or as having been abandoned, or as having been brought in fraud of the policy of repose, upon which the statute proceeds. These are to be regarded as merely different modes of stating a point which is substantially one and thesame in legal idea.

As justifying the construction which we claim to be the true one, there are a number of considerations that may be adverted to:

I. The doctrine of reasonable diligence pervades the whole body of the law. It approximates universality more nearly than any other single truth in the general canon. It connects itself, in some form, with every right, and with every private and every public duty.

II. By the rule of the common law, a suit was commenced, within the meaning of the Statute of Limitations, by the issuance of a summons, and delivering it or sending it to the Sheriff, with a bona fide intent to have it served. (Burdick v. Green, 18 Johns. 14; Vischer v. Gansevoort, Id. 496; Ross v. Luther, 4 Cow. 161.)

III. The doctrine of reasonable diligence has already been wrought into the texture of the statute by judicial construction. By the common law, the death of a plaintiff abated the suit, and the executor was compelled to commence de novo. If a party, having brought his action before the statute had run, died after it had run, the executor was allowed to bring a new action within a reasonable time after the death. Still, the Statute of James, in its letter, hinted at no such right. (Kinsey v. Heyward, 1 Lord Raym. 434; Schermerhorn v. Schermerhorn, 5 Wend. 513.)

IV. Our Statute of Limitations is fraught with positive recognitions of the rule of reasonable diligence. They are set forth in detail in the twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, and twenty-ninth sections. These sections, and the one relating to the commencement of actions, are all in pari materia. It is assumed that they all proceed upon the same policy, and that they are designed to secure a common end by kindred modes and on the basis of kindred ideas. Noscitur a Sociis. (Pudney v. Griffiths et al., 15 How. Prac. Rep. 410.)

V. The construction which we resist results in the strange anomaly, that the filing of a complaint by the plaintiff is more than the equivalent of a new promise, or of any number of new promises short of infinity, made by the defendant.

VI. The adverse view goes entirely on the literalimport of the word " filing," and excludes peremptorily from consideration all the matters hereinbefore adverted to as being utterly foreignto this contested question of construction. The statute is remedial, and literal interpretation is not the rule. " Qui hoeret in litera hoeret in cortice " contains at once a rule and rebuke. Literal interpretation here would, however, be fatal to the respondents--for their complaint was never " strung upon either thread or wire."

But, passing this, the meaning of the word in the minor law and in the rules of Court, and in the dialect of prothonotaries and clerks, is well understood. But here the word is used in a more important relation, and it is enlarged and ennobled by the more exalted use to which it is put. " In interpreting an Act of Parliament it is not in general a true line of construction to decide according to the strict letter of the act; but Courts will rather consider what is the fair meaning, and expound it differently from the letter, in order to preserve the intent. The meaning of particular words, indeed, in Acts of Parliament, as well as in other instruments, is to be found, not so much in strict etymological propriety of language, or even in popular use, as in the subject or occasion in which they are used and the object that is intended to be attained." (Broom's Maxims, 536.)


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