Dougall v. Schulenberg

Citations

• 101 Cal. 154
• 35 P. 635
• 1894 Cal. LEXIS 999

Syllabus

<p>Statute of Limitations—Findings—Record Upon Appeal.—Where a defendant pleads the statute of limitations as a bar to an action upon promissory notes, and the court finds that the cause of action is not barred by the statute, such finding will not be disturbed on appeal, where the original complaint is not in the record, nor anything to show when the suit was commenced.</p> <p>Id.—Judgment-Roll—Original Complaint Superseded by Amendment —Date of Commencement of Suit.—The appellant must show error, and to assail a finding that the action was not barred by the statute of limitations should bring up the original complaint as part of the judgment-roll, although superseded by an amended pleading, in order to show the date of the commencement of the action; and where he does not do so the judgment should be affirmed, for failure to furnish a proper record, and on the ground that no error appears.</p> <p>Id.—Nonresidence—Absence From State.—Where the note sued upon was in express terms payable out of the state, and both of the payors were nonresidents of the state when the cause of action accrued, the statute only commences to run in their favor when they came to this state, and if afterward they left the state, the time when they were so absent would not be a part of the time in which the suit must be commenced.</p> <p>Id.—Pleading—Departure From State—Waiver of Objection.—Where the complaint substantially averred that the defendant was a nonresident of the state, and had not been in the state for two years when the action was commenced, and there was no objection to evidence offered at the trial to prove that he came to the state after the cause of action accrued, and thereafter again departed from it, the defendant cannot be injured by the failure of the complaint specifically to allege a departure from the state after the cause of action accrued.</p>