Bates v. Gregory

I dissent. The proceeding herein is not barred by the statute of limitations. The Code of Civil Procedure classifies the procedure in this case as a special proceeding of a civil nature: See Code Civ. Proc., pt. 3, p. 371. The contents of the page just cited are a part of the code (Sharon v. Sharon, 75 Cal. 16 , 16 Pac. 345 ), and define the character of the procedure mentioned in part 3 of the Code of Civil Procedure. The right to commence this proceeding did not exist until a demand was made for the issuance of bonds to the petitioner, and its refusal by the board of trustees of the city of Sacramento. The demand and refusal were made but a few days before this proceeding was begun. No statute of limitations that we know of effected a bar herein. Nor were the bonds of a former issue held by petitioner barred by the statute of limitations. This was, in fact, determined by the ease of Underhill v. Trustees, 17 Cal. 177 , which applies with all its force to this case. The court, in its opinion, by Baldwin, J., states the case in relation to the defense of the statute of limitations, and disposes of it. The court said: “The important question is that arising under the statute of…

This was an application for a writ of mandate to compel the defendants, as trustees of the city of Sacramento, to issue to petitioner new bonds of the city in accordance with the provisions of the act of March 22, 1864. in exchange for unpaid bonds held by him, which were issued under the provisions of the acts of April 26, 1853, and April 10, 1854. The defendants, in their answer, and upon the trial, contended that the claims were stale, and barred by the' statute of limitations. This contention prevailed, and resulted in a judgment for the defendants, from which, and an order denying a new trial, plaintiff appeals.

March 26, 1851, the city of Sacramento was incorporated by an act of the legislature, passed on that date, entitled “An act to incorporate the city of Sacramento”: Stats. 1851, p. 391. By this act the government of the city was placed in the hands of a mayor, recorder, and a common council, who were constituted a body politic under the name of the “Mayor and Common Council of the City of Sacramento,” with authority to sue and be. sued; to borrow money, and pledge *172 the faith and credit of the city therefor; and to levy and collect taxes. April 26, 1853, another…