[S.F. No. 1688. Department One. — September 17, 1900.] Plaintiff recovered judgment, and this appeal is from the judgment and an order denying the defendants' motion for a new trial.
The complaint alleges that the defendant Hall was at the November election, 1892, elected county recorder of the county of Sonoma, and that he afterwards executed his official bond, with the other defendants as sureties; that during his official term, up to and including January, 1895, defendant Hall, in his official capacity, "ought to have charged and collected, and did charge and collect," as legal fees, the sum of $4,613.38 in excess of the amount paid to the county by him, and that he has never since paid the same, and that it is now due and owing to the county. The defendants in their answer pleaded the statute of limitations, alleging that the cause of action was barred by the provisions of subdivision 1 of section 338, and subdivision 1 of section 339, and subdivision 1 of section340 of the Code of Civil Procedure. The plaintiff demurred to the portions of the answers in which the statute of limitations was pleaded, and the court sustained the demurrers as to all parts of the answers devoted to the plea of the statute.
The court evidently proceeded upon the theory that the action was upon the official bond of defendant Hall, and that the action could not become barred until four years after the breach of the bond. In this the court was in error. (County of Sonoma v. Hall, S.F. No. 1529; ante, p. 592.)
Again, the defendants had the right to plead the statutes, or any statute, of limitations as a matter of right, and it was the duty of the court to pass upon the issues thus raised in the consideration of the case. (Bates v. Gregory, 89 Cal. 398.) The ruling of the court was a denial to defendants of the right to be heard as to the truth of their several pleas of the statute. *Page 599
The judgment and order should be reversed.
Haynes, C., and Chipman, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are reversed.
Harrison, J., Garoutte, J., Van Dyke, J.
Beatty, C.J., did not participate in the foregoing.
Rehearing denied.