Butterfield

This appeal arose out of efforts by the State Board of Equalization to collect unpaid sales taxes due from Giant Investment and Land Company, a corporation. Such effort was by means of an action filed May 13, 1977, on a guaranty agreement executed in behalf of the corporation and in favor of the State of California, an agreement to which the appealing Eugene Butterfield, Jr., (defendant) was a subscribing guarantor. His signature had been acknowledged by Ruth B. Schoettlin, a notary public, prima facie on July 22, 1970.

By cross-complaint filed July 12, 1978, based upon his allegation that he had never appeared before Schoettlin, defendant sought indemnity from the notary public and her corporate surety, Northwestern National Insurance Company, for damages he might sustain by reason of the notary’s alleged misconduct.

The surety demurred to the defendant’s cross-complaint and the trial court sustained the demurrer without leave to amend on the ground that the action against the surety was barred by the six-year statute of limitations as contained in section 338, subdivision 6 of the Code of Civil Procedure. The defendant appealed from the judgment of dismissal entered…