Conway v. Supreme Council (137 Cal. 384, 1902)

CHIPMAN, C.

Action to enforce the payment by defendant the Supreme Council, Catholic Knights of America, a corporation, of a benefit certificate calling for two thousand dollars, issued to John M. Conway, naming his nephew, plaintiff, as beneficiary. At the first trial the defendants Noonan, Shea, and Menihan had judgment, and on the appeal of plaintiff and defendant corporation the judgment was reversed, for the reason that there was no finding on the plea of the statute of limitations (Code Civ. Proc., sec. 339, subd. 1) interposed by both appellants. (Conway v. Supreme Council etc., 131 Cal. 437.) Defendants Noonan, Shea, and Menihan became sureties for John M. Conway, who assigned the certificate to them as collateral security. They were compelled to pay Conway’s debt, which they did on June 4, 1892, (erroneously stated in former appeal June, 1893,) and Conway died in August, 1896. The court said: “By section 2911 of the Civil Code it is provided that a lien is extinguished by the lapse of the time within which under the provisions o£ the Code of Civil Procedure an action can be brought upon, the principal obligation. There is no doubt but that the: principal obligation in this ease was barred . . . unless it had been reduced to judgment or in some other equally effective form had been kept alive and enforceable. The court has failed to find upon this vital question, and the judgment and order must therefore be reversed.” (Conway v. Supreme Council etc., 131 Cal. 437.) At the retrial the same facts were restipulated and some supplemental facts were also stipulated, and the court again rendered judgment for defendants, the sureties, and the appeal is by plaintiff and the corporation, as before, from the judgment and from the order denying a new trial.

Paragraphs 17 and 18 of the supplemental stipulation are as follows: “17. That during a period of more than two years prior to the death of said John M. Conway, to wit: from January 18, 1894, until his death, the said John M. Conway was continuously at his said home in the state of California and was not during said time out of the state. 18. That no action has at any time been brought or judgment recovered by the said Noonan, Shea, and Menihan, or either of them, against said John M. Conway, or Thomas J. Conway, (except this action,) for said surety indebtedness, . . . nor has any new promise in writing been made by the said John M. Conway or Thomas J. Conway to said Noonan, Shea, and Menihan, nor has the time for payment by the said John M. Conway been in any way extended. ’ ’ The indebtedness for which Noonan, Shea, and Menihan became sureties was the obligation of John M. Conway, deceased, which they paid June 4, 1892, to secure which the benefit certificate was assigned to them. What was true at the former trial is true now,—namely, that as John Conway died in 1896, and had not been out of the state for more than two years prior to his death, the principal obligation was barred (Code Civ. Proe., sec. 339), and the lien became extinguished (Civ. Code, sec. 2911),—“unless,” as was held in the former appeal, “the principal obligation had been reduced to judgment or in some other equally effective form had been kept alive and enforceable. ’ ’ The case is here on the same facts as before, with the above additional facts