Bliss v. Sneath

Citations

• 119 Cal. 526
• 51 P. 848
• 1898 Cal. LEXIS 664

Syllabus

<p>Statute op Limitations—Counterclaim—Pleading—Demurrer—Defense to Counterclaim—Record upon Appeal—Presumption.—The statute of limitations is a personal privilege which is waived, unless specially pleaded; and, where a counterclaim appears upon the face of the answer to be barred by the statute of limitations, it must be specially pleaded to by demurrer on that ground, else it is waived; and if it does not so appear, in order that it may be availed of upon appeal as a defense to the counterclaim, and that reversible error may be shown in sustaining the counterclaim, it is incumbent upon the plaintiff to show in the record upon appeal that the statute of limitations was urged in the court below and relied upon as a defense to the counterclaim, else it will be assumed upon appeal that no such defense was made or claimed.</p> <p>Id.—Action for Rent—Counterclaim for Division Pence—Period of Limitation-Statutory Liability.—In an action for rent, a counterclaim for a division fence constructed by the defendant upon contiguous land and used by the plaintiff is upon a liability created by statute, and is not barred short of three years from the date of the inclosure of plaintiff’s land whereby the division fence was utilized; and it is immaterial that it may be deemed a cause of action upon contract. within the law of setoff and counterclaim.</p>