I concur in the conclusion that the trial court had no authority to vacate the judgment entered upon an order sustaining the respondents’ demurrer without leave to amend. But I do not join in the determination that the judgment should be affirmed because the “petitioner’s asserted cause of action for mandamus appears to be barred by limitations statutes. ’ ’
The grounds of demurrer were that the petition does not state sufficient facts to constitute a cause of action and' that the cause of action, if any, is barred by the statute of limitations. Although the trial court in sustaining the demurrer did not announce the basis of its decision, all of the authorities cited and the amendments to the petition presented in the subsequent attempt to have the judgment vacated were directed solely to the issue of the statute of limitations.
The majority opinion states the two issues regarding the application of the statute as being: (1) whether it constitutes a bar to petitioner’s claim on the bonds and thereby prevents him from having such interest as entitles him to maintain a proceeding in mandate; and, (2) whether the statute directly bars the right to the remedy of mandate, regardless of its effect upon an action on the bonds. The parties directed their briefs primarily to the first proposition. The basic issue presented in that regard is whether certain endorsements made on the bonds are sufficient to constitute such “registration” of them as to toll the statute. The position of the petitioner upon this issue is not fairly met by the majority opinion. No discussion is given to the statutes involved nor to the arguments presented by the petitioner, and the point is disposed of by stating: “In support of his position . . . petitioner relies upon certain language in Irvine v. Bossen . . ., but in our view such language, when read in its full *699context, falls short of the effect invoked.” This certainly is not a holding that the petitioner could not have amended his petition to show registration of the bonds. If, as the opinion states, the petition shows “prima facie, that the action upon the bonds was barred,” that conclusion concerns only the question of whether the demurrer should have been sustained, and does not determine whether it properly could have been sustained without leave to amend. Upon this latter point there is no decision.
Otherwise stated, the majority opinion holds that because the petition does not show, as against a demurrer, that the petitioner may maintain an action upon the bonds, the mandate proceeding may not be maintained because the statute of limitations is a bar to a recovery of the indebtedness. This conclusion is correct only if it is based upon a determination that the petitioner could not amend his petition to state a cause of action upon his bonds, and the court leaves that question undecided.
In considering the second issue concerning the statute of limitations, the opinion declares: “It may well he that petitioner cannot maintain this proceeding unless his pleading shows that he has a right, not barred by limitation, to recover on the bonds, because otherwise he would fail to show that he possesses a substantial interest which mandamus would protect; but a showing that action on the bonds is not barred is not the equivalent of a showing that the right, if any, to mandamus is not barred. It is with that latter right that we are here directly concerned.” (Emphasis added.) And again: “We agree with the respondents, therefore, that regardless of whether the ability to plead registration of the bonds in an amended petition would adequately meet the issue of the limitations statutes so far as concerns suit to enforce payment of the bonds from any monies which might actually be in the bond redemption funds, petitioner has failed to allege facts which would excuse the delay” in bringing mandate. (Emphasis added.) The sole ground of the decision, therefore, is that, even if the petition could have heen amended to state a cause of action upon the bonds, the statute of limitations bars the right to require the transfer to the bond redemption fund of an amount sufficient to meet the unpaid principal and interest.
The opinion notes that “petitioner has failed to allege facts which would excuse the delay” (emphasis added); *700“ [f]or aught that is alleged the now sought remedy of mandamus was at all times concerned available”; and “ [h]e nowhere avers, nor does he claim that he is able to aver” such facts. These statements assume that there is an affirmative duty upon the petitioner to negative the statute of limitations. To the contrary, the statute is a matter of defense normally to be raised by answer, and only available upon demurrer when the pleader has alleged facts from which it affirmatively appears that the action has not been commenced within the time fixed by statute.
“A demurrer reaches only matters appearing upon the face of the pleading to which it is directed, and it must be determined upon the allegations of such pleading without speculation on what might have happened or what might not have occurred. . . . Accordingly, the defense of the statute of limitations cannot be urged by demurrer, unless it clearly appears from the complaint that the plaintiff’s cause of action is barred.” (21 Cal.Jur. [Pleading, § 61] 94-95.)
For all that appears in „ the petition, there has not been “unencumbered current surplus” monies in the city treasury at any time prior to 1945. I, therefore, see no basis for barring the petitioner’s right to demand a transfer of such money to the bond redemption fund in the absence of allegation of facts by the petitioner showing that the statute of limitations is applicable.