Smith v. Irving

This is an action for relief on the ground of mistake. It was not commenced until more than thirty years after the mistake occurred. As to the time when the mistake was first discovered by plaintiffs, the complaint is silent. The complaint was demurred to on the ground, among others, that the alleged cause of action was barred by the provisions of section 338 of the Code of Civil Procedure. The demurrer was sustained, plaintiffs declined to amend their complaint, judgment was entered for defendants, and plaintiffs appeal. Section 338 of the Code of Civil Procedure provides *122 that an action for relief on the ground of fraud or mistake must be commenced within three .years after the cause of action accrued. In People v. Blankenship, 52 Cal. 619 , it was held that an action for relief on the ground of fraud was barred after the lapse of three years, unless the plaintiff alleged a discovery of the facts constituting the fraud within three years before the commencement of the action. In that case an order overruling a demurrer was reversed. In Sublette v. Tinney, 9 Cal. 423 , the court says: “The policy of the law is that actions on this ground should be commenced within three…