I dissent from the order denying a rehearing of this cause. It was originally submitted in Department upon briefs, respondent claiming an affirmance of the judgment and order of the superior court upon several distinct and independent grounds, — among others, upon a finding of facts sustaining its plea of the statute of limitations. In the opinion delivered, in Department this and other contentions of respondent were left unnoticed, the judgment and order being affirmed for reasons which, as pointed out in appellant's petition for a rehearing, were inconsistent with what we had recently decided in Conway v. Supreme Council,131 Cal. 437, and 137 Cal. 384. This conflict of decisions rendered a rehearing necessary, and it was accordingly ordered; but it did not follow that a return to the doctrine of that case would necessitate a reversal in this case, for there still remained the respondent's plea of the statute of limitations, which it had all the time been strenuously urging, and to which no consideration has been given on rehearing. I think that if it were even clear that the respondent's contention on this point is unfounded, it should nevertheless have been noticed, but so far from being unfounded the position of respondent seems to me to be well supported on principle and authority. If the appellant is now entitled to this insurance, her right of action to recover the policies accrued when the lien was extinguished, which was seven years before this action was commenced, during all of which time the respondent held the policies under an assignment absolute in terms and claiming *Page 482 them as its own. This is as good a ground of recovery as that upon which appellant bases her claim, and the equities of the case are certainly on the side of respondent.
Shaw, J., concurred.