Perillo

The plaintiff commenced an action to recover moneys from the defendants. The defendants interposed a demurrer which pleaded that the plaintiff’s second amended complaint did not state facts sufficient; that plaintiff's alleged cause of action was barred by the pro visions of subdivision 4 of section 338, section 359, and subdivision 1 of section 338 of the Code of Civil Procedure; and certain other matters not necessary to be stated. The demurrer was sustained, the plaintiff declined to amend, and thereupon judgment was entered in favor of the defendants. From that judgment the plaintiff has appealed and has brought up the judgment-roll.

The defendants interposed a preliminary objection to the hearing of this appeal. That objection was based on the same facts and involved the same provisions of law as the preliminary objection made in San Leandro etc. Co. v. Perillo et al., ante, p. 627 [ 258 Pac. 666 ].

From an inspection of the judgment-roll it appears that the action was commenced on the twenty-first day of March, 1924. The action was not barred on said date by any statute of limitations.

On November 8, 1920, the plaintiff was a corporation having an unissued capital stock…