38 Cal. 428, departing from rule stated in People vs. San Francisco, 4 Cal. 127, and Scale vs. Mitchell, 5 Cal. 401, 402, but see Welsh vs. Cross, 146 Cal. 621, 630, 81 Pac. Rep. 229, overruling Tuolumne R. Co. vs. Sedgwick, supra, and Moore VS. Martin, supra, and restoring rule as declared in the earlier cases, and as stated in preceding paragraph. 64. SHORTENING TIME OF ONE REMEDY given by statute will not operate to shorten time of another existing and independent remedy.-Fox vs. Townsend (Cal. Nov. 16. 1905), 1 Cal. App. Dec. 695. § 9. LIMITATIONS SHALL CONTINUE TO RUN. When a limitation or -period of time prescribed in any existing statute for acquiring a right or barring a remedy, or for any other purpose, has begun to run before this code goes into effect, and the same or any limitation is prescribed in this code, the time which has already run shall be deemed part of the time prescribed as such limitation by this code. History: Enacted March 12, 1872; amended March 30, 1874, Code 1. Amendment cutting off right of appeal, 2. Distinction between statutes of limitations and law of prescription. 3. Legislative repeal of act, when revives right. 4. Municipal corporation-Right to defense of statute of limitations. 5. Power of legislature limited by constitution. 6. Statute of limitations-Construed as to judgments. 7-9. Statutory provisions on subject of limitation, how considered - Not retrospective. 10. Statute is privilege personal to debtor. 11. Statutes of limitations are statutes of repose. 12. Vested right does not exist in running of statute. 1. OF AMENDMENT CUTTING OFF RIGHT APPEAL if construed as operating retrospectively, held that, unless absolutely necessary, such intention should not be imputed to legislature and that operation of such amendment should be limited to judgments thereafter entered.-Pignaz vs. Burnett, 119 Cal. 157, 160, 51 Pac. Rep. 48. 2. DISTINCTION BETWEEN STATUTES OF LIMITATION AND PRESCRIPTION, as known to courts of common law, is that prescription confers right and statute of limitation takes away remedy.-Billings vs. Hall, 7 Cal. 1, 4. 3. LEGISLATURE MAY BY REPEAL OF ACT REVIVE RIGHT which has not been extinguished, but has been in abeyance for want of remedy to assert it.-Billings vs. Hall, 7 Cal. 1, 4. 4. MUNICIPAL CORPORATION has legal right to avail itself of defense of statute of limitations as fully as any other creditor.Bates vs. Gregory, 89 Cal. 387, 398, 26 Pac. Rep. 891. See Sonoma Co. vs. Hall, 132 Cal. 589, 598, 66 Pac. Rep. 257, 312, 65 Id. 12, 459; San Luis Obispo Co. vs. Gage, 139 Cal. 398, 73 Pac. Rep. 174. 5. POWER OF LEGISLATURE IS ONLY LIMITED BY EXPRESS CONSTITUTIONAL RESTRICTIONS; and following this rule legislature may limit, modify, or delay remedy, even admitting doctrine cannot alter remedy so as to impair the right (dis. op.). People ex rel. Thorne vs. Hays, 4 Cal. 127, 158. Approved as authority in Moore vs. Martin, 38 Cal. 428, 439, construing right to have judgment enforced under law existing at time of creation of subject of judgment and prior to enactment of redemption law. 6. Statute of limitations can only be construed to apply to judgments not in esse at time of passage of act.-Scarborough vs. Dugan, 10 Cal. 305, 309. ON 7. ALL STATUTORY PROVISIONS SUBJECT OF LIMITATION of actions are to be considered, and they are to be construed in view of presumption that legislators are acquainted with well-settled principles of law, and legislate with reference thereto.-Pryor vs. Winter (Cal. Aug. 22, 1905), 82 Pac. Rep. 202. 8. Statutes of limitations have no retrospective force beyond their passage. Billings vs. Hall, 7 Cal. 1, 5. 9. Statutes of limitations are designed to effect remedy, and not right of contract.Billings vs. Hall, 7 Cal. 1, 4. 10. STATUTE OF LIMITATIONS IS PRIVILEGE PERSONAL TO DEBTOR and whenever, in any legal proceeding, it is invoked by debtor, court is compelled to recognize it as proper defense.-Bates vs. Gregory, 89 Cal. 387, 398, 26 Pac. Rep. 891. 11. STATUTES OF LIMITATIONS ARE STATUTES OF REPOSE, because law for purpose of preventing litigation has determined that there should be some period affixed beyond which party ought not to be allowed to assert stale demands, and that presumption of payment or of title ought to arise after he had neglected to assert his right for certain length of time. -Billings vs. Hall, 7 Cal. 1, 3. §§ 10-12 (12) HOLIDAYS-COMPUTING TIME. made during time of its running, that time is not credit to defendant under new law. Whole period contemplated by new law must lapse to bar action. Such are general principles applicable alike to criminal and civil actions, unless new act itself expresses contrary intent.-Swamp Land Dist. vs. Glide, 112 Cal. 85, 90, 44 Pac. Rep. 451. Mass. Bigelow vs. Bemis, 84 Mass. (2 Allen) 496, 497. N. C. Pearsall VS. Kenan, 79 N. C. 472, 28 Am. Rep. 336. Pa. Commonwealth vs. Duffy, 96 Pa. St. 506, 42 Am. Rep. 554. Tex. Bender vs. Crawford, 33 Tex. 745, 7 Am. Rep. 270. Fed. Sohn vs. Waterson, 84 U. S. (17 Wall.) 596, 599. bk. 21 L. ed. 737; Vance vs. Vance, 108 U. S. 514, 517, bk. 27 L. ed. 808, 2 Sup. Ct. Rep. 854; Wheeler vs. Jackson, 137 U. S. 245, 255, bk. 34 L. ed. 659, 11 Sup. Ct. Rep. 76. § 10. HOLIDAYS. Holidays, within the meaning of this code, are every Sunday, the first day of January, the twenty-second day of February, the thirtieth day of May, the fourth day of July, the ninth day of September, the first Monday in September, the twenty-fifth day of December, every day on which an election is held throughout the state, and every day appointed by the president of the United States or by the governor of this state for a public fast, thanksgiving or holiday. If the first day of January, the twenty-second day of February, the thirtieth day of May, the fourth day of July, the ninth day of September or the twenty-fifth day of December fall upon a Sunday, the Monday following is a holiday. Every Saturday from twelve o'clock noon until twelve o'clock midnight is a holiday as regards the transaction of business in the public offices of this state, and also in political divisions. thereof where laws, ordinances, or charters provide that public offices may be closed on holidays; provided, this shall not be construed to prevent or invalidate the issuance, filing, service, execution, or recording of any legal process or written instrument whatever on such Saturday afternoons. History: Enacted March 12, 1872; amended April 9, 1880, Code Amdts. 1880 (Pol. pt.), p. 49; March 1, 1889, Stats. and Amdts. 1889, p. 47; March 23, 1893, Stats. and Amdts. 1893, p. 187; February 23, 1897, Stats. and Amdts. 1897, p. 13; March 10, 1905, Stats. and Amdts. 1905, p. 92. As to holidays, exclusion and inclusionof, in computation of time, see post 12 and note. § 11. SAME. If the first day of January, the twenty-second day of February, the fourth day of July, or the twenty-fifth day of December, fall upon a Sunday, the Monday following is a holiday. History: Enacted March 12, 1872; amended March 30, 1874, Code As to holidays, see post § 12 and note. § 12. COMPUTATION OF TIME. The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded. quired to be filed with county clerk, not more than fifty nor less than thirty days before day of election, when nomination is made by convention, held that county clerk will not be compelled by issuance of writ of mandate to file certificate, where thirtieth day preceding day of election fell on Sunday, and succeeding day, October 5th, was legal holiday, and presentation of certificate was made on October 6th; for reason that statute relating to certificates of nomination does not fix day upon which, or time within which, certificate is to be nled, but declares that it shall be filed "not less than 30 days before day of election," and that to file certificate 28 days refore election would be in disregard of Its provisions.-Griffin vs. Dingley, 114 Cal. 481, 483, 46 Pac. Rep. 457. 3. IN MEASURING AND COMPUTING TIME it has been rule from very early day in this state to exclude day upon which event happened, the rule and method of computation differing from that of earlier English practice, which was inclusive method, under which time began to run upon day of happening of event.-Scoville vs. Anderson, 131 Cal. 590, 594, 63 Pac. Rep. 1013. See Price vs. Whitman, 8 Cal. 412; Iron Mt. Co. vs. Haight, 39 Cal. 540. 4. Compare: People ex rel. Campbell vs. Clark, 1 Cal. 406, 408, in which rule under earlier English practice was adopted. 5. Sale of bonds of irrigation district under Wright act (Stats. 1887, p. 29), noticed to take place on legal holiday, will be presumed to have been postponed to day following, which law allowed officer to do, as it presumed that official duty of officer was fully performed, though there be no statute prohibiting sale on holiday and no statute prohibiting postponement of sale noticed on holiday.-Baxter vs. Vineland I. Dist., 136 Cal. 185, 193, 68 Pac. Rep. 601. Whenever § 13. CERTAIN ACTS NOT TO BE DONE ON HOLIDAYS. any act of a secular nature, other than a work of necessity or mercy, is appointed by law, or contract to be performed upon a particular day, which day falls upon a holiday, such act may be performed upon the next business day with the same effect as if it had been performed upon the day appointed. History: Enacted March 12, 1872. Applied, cited, construed, referred to, etc., in: Griffin vs. Dingley, 114 Cal. 481, 483, 46 Pac. Rep. 457 (construed with ante § 12 and post § 1192, but holding §§ 12 and 13 inapplicable); Baxter vs. Vineland, I. Dist., 136 Cal. 185, 193, 68 Pac. Rep. 601 (construed with Civ. Code § 11 and Code Civ. Proc. §13 in connection with § 26 of the Wright Act). As to holidays, similar provisions to this section, see KERR'S CYC. CIV. CODE §11 and note; also KERR'S CYC. CODE CIV. PROC. 13 and note. § 14. SEAL DEFINED. When the seal of a court, public officer, or person is required by law to be affixed to any paper, the word "seal" includes an impression of such seal upon the paper alone as well as upon wax or a wafer affixed thereto. History: Enacted March 12, 1872, founded on § 454 Practice Act 1851, § 15. JOINT AUTHORITY. Words giving a joint authority to three or more public officers or other persons are construed as giving such authority to a majority of them, unless it is otherwise expressed in the act giving the authority. 1. Applied, cited, construed, referred to. 2. Acts of majority, rule as to. 3. Board of state harbor commissioners-Au- 4. Board of supervisors-Action of quorum. 6. Rule prior to modification by code-Code 7. Words giving joint authority, how construed. 1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: Talcott vs. Blanding, 54 Cal. 289, 293 (construed); People ex rel. Hoffman vs. Hecht, 105 Cal. 621, 627, 629, 45 Am. St. Rep. 96, 38 Pac. Rep. 941, 27 L. R. A. 203 (construed and applied). As to general rule relating to joint authority power of majority, etc., see KERR'S CYC. CIV. CODE § 12 and note pars. 2-9. 2. ACTS OF MAJORITY, RULE AS TO.Where number of persons are intrusted with powers, not of mere private confidence but in some respects of general nature, and all of them are regularly assembled, majority will conclude minority and their #16, 17 (14) WORDS AND PHRASES TERMS USED IN CODE. act will be act of whole.-Talcott VS. Blanding, 54 Cal. 289, 294. See People ex rel. Hoffman vs. Hecht, 105 Cal. 621, 628, 45 Am. St. Rep. 96, 102, 38 Pac. Rep. 941, 27 L. R. A. 203. 3. BOARD OF STATE HARBOR COMMISSIONERS acted within its authority where two of three members constituting board adjusted, audited, and allowed claims for constructing improvements in harbor of San Francisco, under contract with such board, as authority exercised by board is given by special act and it is nowhere provided that concurrence of all three members of board shall be necessary to proper exercise of such authority.-Talcott vs. Blanding, 54 Cal. 289, 293. 4. BOARD OF SUPERVISORS—Action of quorum.-Action of quorum of board of supervisors is action of such board, and action of majority of quorum, though not constituting majority of board, is valid and binding.-People ex rel. Flint vs. Harrington, 63 Cal. 257, 260; People ex rel. Hoffman vs. Hecht, 105 Cal. 621, 628, 45 Am. St. Rep. 96, 38 Pac. Rep. 941, 27 L. R. A. 203. 5. FREEHOLDERS TO PREPARE AND PROPOSE CHARTER.-Thirteen freeholders, constituting a majority of board for city and county of San Francisco, held competent to organize and act as board of freeholders to prepare and propose charter 6. RULE PRIOR TO MODIFICATION BY CODE-CODE RULE. The power or authority given to public officers, commissioners, or committeemen is joint authority to be exercised by all of them, and (except as provided by statute) all must meet and deliberate; but this done, majority may decide. Authority under code. although joint where given to three or more, is to be construed as giving sucn authority to majority of them, unless it is otherwise expressed in act giving such authority. If majority possesses all authority of whole, then such majority must be competent to its exercise. For all practical purposes, majority becomes full board, and its action cannot be stayed by non-action, failure to qualify, absence, death, or want of eligibility of minority.-People ex rei. Hoffman vs. Hecht, 105 Cal. 621, 627, 45 Am. St. Rep. 96, 38 Pac. Rep. 941, 27 L. R. A. 203. 7. WORDS GIVING JOINT AUTHORITY to three or more public officers will be construed as giving it to majority, unless otherwise expressed.-Talcott vs. Blanding, 54 Cal. 289; People ex rel. Hoffman Hecht, 105 Cal. 621, 628, 45 Am. St. Rep. 96, 38 Pac. Rep. 941, 27 L. R. A. 203. VS. § 16. WORDS AND PHRASES. Words and phrases are construed according to the context and the approved usage of the language; but technical words and phrases, and such others as have acquired a peculiar and appropriate meaning in law, or are defined in the succeeding section, are to be construed according to such peculiar and appropriate meaning or definition. History: Enacted March 12, 1872. § 17. CERTAIN TERMS USED IN THIS CODE DEFINED. Words used in this code in the present tense include the future as well as the present; words used in the masculine gender include the feminine and neuter; the singular number includes the plural, and the plural the singular; the word "person" includes a corporation as well as a natural person; writing includes printing and typewriting; oath includes affirmation or declaration; every mode of oral statement under oath or affirmation is embraced by the term "testify," and every written one in the term "depose"; signature or subscription includes mark, when the person cannot write, his name being written near it by a person who writes his own name as a witness; provided, that when a signature is made by mark it must, in order that the same may be acknowledged or serve as the signature to any sworn statement, be witnessed by two persons who must subscribe their own names as witnesses thereto. The following words, also, have in this code the signification attached to them in this section, unless otherwise apparent from the context: 1. The word "property" includes both real and personal property; 2. The words "real property" are coextensive with lands, tenements, and hereditaments; 3. The words "personal property" include money, goods, chattels, things in action, and evidences of debt; 4. The word "month" means a calendar month, unless otherwise expressed; 5. The word "will' includes codicil; 6. The word "writ" signifies an order or precept in writing, issued in the name of the people, or of a court or judicial officer, and the word "process" a writ or summons issued in the course of judicial proceedings; 7. The word "vessel," when used with reference to shipping, includes ships of all kinds, steamboats, and steamships, canal-boats, barges, and every structure adapted to be navigated from place to place for the transportation of merchandise or persons; 8. The term "peace officer" signifies any one of the officers mentioned in section eight hundred and seventeen of the Penal Code; 9. The term "magistrate" signifies any one of the officers mentioned in section eight hundred and eight of the Penal Code; 10. The word "state," when applied to the different parts of the United States, includes the District of Columbia and the territories; and the words "United States" may include the district and territories. 11. The word "section" whenever used in this code refers to a section of this code, unless some other code or statute is expressly mentioned. History: Enacted March 12, 1872; amended March 30, 1874, Code 1. Applied, cited, construed, referred to. neys- Masculine gender comprehends 3, 4. Municipal corporation is "person" within 1. sor's statement. Word "month," meaning of. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: Foltz vs. Hoge, 54 Cal. 28, 34 (cited); Spring Valley W. W. vs. Schottler, 62 Cal. 69, 116. (construed and applied with post § 3639); People ex rel. Adams vs. Oakland, 92 Cal. 611, 614, 28 Pac. Rep. 807 (construed). 2. FEMALES ARE ENTITLED BY LAW TO BE ADMITTED AS ATTORNEYS or counselors in all courts of this state upon same terms as males, and are entitled to admission to law college and affiliation with state university, where it is conceded that females are admitted as students of university and that words used in masculine gender in this section comprehend as well feminine gender.-Foltz vs. Hoge, 54 Cal. 28, 35. 3. MUNICIPAL CORPORATION IS A "PERSON" in sense in which word is used in this section.-People ex rel. Adams vs. Oakland, 92 Cal. 611, 614, 28 Pac. Rep. 807. 4. STATEMENT OF PROPERTY FOR PURPOSE OF TAXATION. "Person" includes corporation within meaning of statutes requiring persons to furnish statement of property, real and personal, for purposes of taxation.-Spring Valley W. W. Schottler, 62 Cal. 69, 116. VS. 5. WORD "MONTH" MEANS CALENDAR MONTH, unless otherwise expressed.-Scoville vs. Anderson, 131 Cal. 590, 594, 63 Pac. Rep. 1013. § 18. STATUTES, LAWS, OR RULES INCONSISTENT WITH CODE REPEALED. No statute, law, or rule is continued in force because it is consistent with the provisions of this code on the same subject, but in all cases provided for by this code all statutes, laws, and rules heretofore in force in this state, whether consistent or not with the provisions of this code, unless expressly continued in force by it, are repealed and abrogated. This repeal or abrogation does not revive any former law heretofore repealed, nor does it affect any right already existing or accrued, or any action or proceeding already taken, except as in this code provided; nor does it affect any private statute not expressly repealed. History: Enacted March 12, 1872. |