Welco Construction, Inc. v. Modulux, Inc.

Welco Construction, Inc., John Goodwin, Edward Sowell and G. L. Weller (hereinafter collectively referred to as Welco Construction) appeal from a judgment for Modulux, Inc., granted on the trial court’s finding that the plaintiffs’ cause of action was barred by the statute of limitations.

Welco Construction filed its complaint August 22, 1967, some two months after it had been suspended as a corporation for nonpayment of corporate franchise tax. (Rev. & Tax. Code, § 23301.) Modulux filed an answer and cross-complaint. The parties stipulated to various continuances until the matter was finally set for trial on August 20, 1973. On the trial date Modulux challenged Welco’s standing to prosecute its action because of the suspension. The trial court granted Welco’s motion for a continuance for the purpose of reviving the corporation. On the same date Welco obtained a certificate of revivor. (Rev. & Tax. Code, § 23305a.)

Modulux’s motion to amend their answer to plead the statute of limitations was granted. The court thereafter granted Modulux judgment of nonsuit on the ground that Welco’s action was barred by the statute of limitations.

Granting to Welco Construction every…