Bills

The court below sustained a demurrer to the complaint, and, plaintiff declining to further amend, judgment went for defendants. Plaintiff appealed.

The court below correctly sustained the demurrer, and gave judgment for defendants. The demurrer was upon various grounds, among others, that the com *16 plaint does not state facts sufficient to constitute a cause of action, that the action is barred by several sections of the code about the limitations of actions, and that the plaintiff is shown to have been guilty of laches. The material averments of the complaint, which are made upon information and belief, are these: The defendant, the Silver King Mining Company, is a corporation, and during the years 1877,1878, and 1879 one Benjamin W. Reagan was the owner of a large portion of the shares of the capital stock of said corporation, which were represented by a certificate in due form, No. 72, issued to one J. W. Anderson, who was the agent of said Reagan for the purpose of holding said shares and collecting the dividends thereon. It was averred that between the twenty-fourth day of October, 1877, and the thirtieth day of June, 1879, the said corporation regularly declared dividends…

I concur in the judgment of affirmance.

The substance of the complaint is that between November, 1877, and October, 1878, the corporation defendant declared large dividends, of which two hundred and twenty-five thousand dollars in round numbers were payable to Reagan or his trustee, Anderson, in whose name Reagan’s stock stood; that no part of these dividends has been paid, and that the plaintiff, Bills, has succeeded to the right to demand and sue for the *21 same. Much of the voluminous matter contained in the complaint consists of a deraignment of plaintiff’s title, and another large portion consists of excuses for the long delay in making demand and commencing the action. Excluding these matters, the cause of action is merely the refusal of the corporation to pay to its stockholder his share of declared dividends.

This is a simple action at law to which the defense of the statute of limitations is as clearly applicable as to any other, and it is barred in two years after it accrues. (Code Civ. Proc., sec. 339.) I concede that a preliminary demand of payment is necessary to perfect the right of action, and that if such demand is made within a reasonable time the statute does…

I dissent.

A demurrer was sustained to plaintiff’s complaint upon the ground that his cause of action was barred by the statute of limitations, and, upon refusal to amend, the action was dismissed; and thereupon this appeal was taken.

The complaint contains the following allegations:

The foregoing facts are sufficient for the purposes before us. They form an interesting recital; and if, under the circumstances here detailed, the appellant can be deprived of his money and the respondent be allowed to retain it as its own, there is something wrong in the law. It was held by the trial court that this action was barred by the statute of limitations, and this ruling is supported by counsel upon the grounds: 1. That no demand for declared dividends is necessary to set the statute of limitations in motion; and 2. That, if such demand is necessary, then the foregoing facts constitute a demand on the part of appellant for these dividends and a refusal upon the part of respondent to pay them; and by reason thereof the statute of limitations was set in motion and the action fully barred before the filing of the complaint herein.

I cannot assent to either of these propositions. It is a…