Stuckman

Appeal from judgment for defendant entered pursuant to an order sustaining without leave to amend a demurrer to plaintiffs’ complaint. The action is one for malpractice, alleged to have occurred in August, 1954, the facts being known immediately to plaintiffs. The instant complaint was filed on February 13, 1957. The demurrer, which was sustained without leave, relied upon subdivision 3 of section 340, Code of Civil Procedure, which establishes the applicable limitation of one year. (38 Cal.Jur.2d, § 91, p. 708.)

To escape that limitation appellants’ counsel has incorporated in the instant record (in a manner warranting our taking cognizance of same) the proceedings in a former suit upon the same cause of action which resulted in a judgment of dismissal pursuant to section 581, subdivision 3, Code of Civil Procedure. Reliance is placed upon Bollinger v. National Fire Ins. Co., 25 Cal.2d 399 [ 154 P.2d 399 ], and the argument is that the former action was defeated by a technicality, the present one is a substantial continuance of the former, and, it having been commenced promptly, the statute was suspended for the period intervening between the commencement of the two…