NO LIMITATIONS WHERE MONEY DEPOSITED IN BANK.

Sec. 348, C. C. P. To actions brought to recover money or other property deposited with any bank, banker, trust company, or savings and loan society, there is no limitation. En. Stats. 1873-74, 293.

Legislative History.

This section is based on the act of March 16, 1872 (Stats. 1871-72, p. 401), providing that there should be no limitation to action for money deposited with banker.

Section Cited.

Mitchell v. Beckman, 64 Cal. 122, 28 Pac. 110; Green v. Bank, 65 Cal. 72, 2 Pac. 887; Santa Rosa etc. Bank v. Barnett, 125 Cal. 412, 58 Pac. 85; Wells, Fargo & Co. v. Enright, 127 Cal. 674, 60 Pac. 439.

Annotation.

Construction-Conflict.-This section does not conflict with section 359 of the Code of Civil Procedure. (Santa Rosa etc. Bank v. Barnett, 165 Cal. 412, 58 Pac. 85.)

There is no limitation against action for bank deposits. (Mitchell v. Beckman, 64 Cal. 122, 28 Pac. 110; Green v. Bank, 65 Cal. 72, 2 Pac. 887.)

CHAPTER IV.

GENERAL PROVISIONS AS TO TIME OF COMMENCING

ACTIONS.

§ 359. This title not applicable to actions against directors, etc.— Limitations in such cases prescribed.

THIS TITLE NOT APPLICABLE TO ACTIONS AGAINST DIRECTORS, ETC.-LIMITATIONS IN SUCH CASES PRESCRIBED.

Sec. 359, C. C. P. This title does not affect actions against directors or stockholders of a corporation, to recover a penalty or forfeiture imposed, or to enforce a liability created by law; but such actions must be brought within three years after the discovery by the aggrieved party of the facts upon which the penalty or forfeiture attached, or the liability was created. En. March 11, 1872.

Director's personal liability: See C. C., sec. 309; Const., art. XII,

sec. 3.

Section Cited.

Green v. Beckman, 59 Cal. 546, 547; Moore v. Boyd, 74 Cal. 171, 15 Pac. 670; Hyman v. Coleman, 82 Cal. 653, 16 Am. St. Rep. 178, 23 Pac. 62; Kennedy v. Cal. Sav. Bank, 97 Cal. 97, 99, 33 Am. St. Rep. 163, 31 Pac. 846; Hunt v. Ward, 99 Cal. 614, 615, 37 Am. St. Rep. 87, 34 Pac. 335; Bank v. P. C. S. Co., 103 Cal. 596, 37 Pac. 499; Winona Wagon Road Co. v. Bull, 108 Cal. 5, 40 Pac. 1077; Wells v. Black, 117 Cal. 163, 59 Am. St. Rep. 162, 48 Pac. 1090; Dingley v. McDonald, 124 Cal. 94, 56 Pac. 790; Santa Rosa Nat. Bank v. Barnett, 125 Cal. 410, 412, 58 Pac. 85; Boyd v. Heron, 125 Cal. 454, 455, 58 Pac. 64; London etc. Bank v. Parrot, 125 Cal. 488, 73 Am. St. Rep. 64, 58 Pac. 164; Nellis v. Pacific Bank, 127 Cal. 167, 59 Pac. 830; Goodall v. Jack, 127 Cal. 259, 260, 59 Pac. 575; Ryland v. Commercial etc. Bank, 127 Cal. 527, 528, 59 Pac. 989; Wells, Fargo & Co. v. Enright, 127 Cal. 671, 60 Pac. 439.

Annotation.

Constitutionality of Section. This section is not inconsistent with section 3 of article XII of the Constitution, imposing such liability, and was continued in full by section 1 of article XXII of the Constitution. (Santa Rosa etc. Bank v. Barnett, 125 Cal. 407, 58 Pac. 85.)

Construction-Conflict.-There is no conflict between this section and section 309 of the Civil Code, relating to the liability of directors of corporations, or section 348 of the Code of Civil Procedure, relat ing to actions against persons and corporations with whom money has been deposited. (Santa Rosa etc. Bank v. Barnett, 125 Cal. 407, 58 Pac. 85.)

Stockholder's Liability-Money Had and Received. An action may be brought within three years to recover for money had and received by the corporation. (Green v. Beckman, 59 Cal. 545; Mitchell v. Beckman, 64 Cal. 121, 28 Pac. 10. Note citations: 43 Am. Dec. 703; 49 Am. Dec. 309; 3 Am. St. Rep. 872.)

Stockholder's Liability-Debt Created by Law.-The liability of a stockholder for the debts of a corporation is a liability created by law within this section. (Green v. Beckman, 59 Cal. 545; Moore v. Boyd, 74 Cal. 171, 15 Pac. 670; Hyman v. Coleman, 82 Cal. 653, 16 Am. St. Rep. 180, 23 Pac. 62; Redington v. Cornwell, 90 Cal. 57, 27 Pac. 40; Kennedy v. California Savings Bank, 97 Cal. 97, 33 Am. St. Rep. 165, 31 Pac. 846; Hunt v. Ward, 99 Cal. 614, 37 Am. St. Rep. 89, 34 Pac. 335; Bank of San Luis Obispo v. Pacific Coast Steamship Co., 103 Cal. 594, 37 Pac. 499; Wells v. Black, 117 Cal. 157, 59 Am. St. Rep. 162, 48 Pac. 1090; Bliss v. Sneath, 119 Cal. 530, 51 Pac. 848; Santa Rosa etc. Bank v. Barnett, 125 Cal. 410, 58

Pac. 85; London etc. Bank v. Parrot, 125 Cal. 488, 73 Am. St. Rep. 64, 58 Pac. 164.

Running of Statute Against Note of Corporation.-The liability of a stockholder of a corporation upon a note given by the corporation is created within the meaning of this section, at least as early as the date of the note, and the statute commences to run in favor of the stockholder from the date of its execution, and not from its maturity, regardless of how long the liability of the corporation to the actions may be postponed by agreement of the creditor. (Bank of San Luis Obispo v. Pac. Coast S. S. Co., 103 Cal. 594, 37 Pac. 499; Winona Wagon Road Co. v. Bull, 108 Cal. 5, 40 Pac. 1077; Wells v. Black, 117 Cal. 163, 59 Am. St. Rep. 166, 48 Pac. 1090.)

Same-Renewal of Notes.-Renewal of notes of corporation does not interrupt running of statute in favor of stockholders. (Goodal v. Jack, 127 Cal. 258.)

Same-Deposits.-The statute begins to run against the liability of the stockholders of a savings bank from the time when the debt was created and the liability incurred, upon the acceptance of each deposit. (Wells v. Black, 117 Cal. 157, 59 Am. St. Rep. 162, 48 Pac. 1090; Nellis v. Pacific Bank, 127 Cal. 166, 59 Pac. 830.)

Same-Payment of Note by Sureties-New Debt.-The payment of a corporate note by sureties thereupon creates a new and distinct debt against the corporation and its stockholders; and the statute begins to run against the sureties from the date of payment of debt, and not from the date of the original obligation, although the pay. ment was not made by the sureties until after the lapse of three years from the date of note. (Ryland v. Commercial etc. Bank, 127 Cal. 525, 59 Pac. 989.)

TITLE V.

MANNER OF COMMENCING CIVIL ACTION.

§ 411. Summons, how served.

SUMMONS, HOW SERVED.

Sec. 411, C. C. P. The summons must be served by delivering a copy thereof, as follows:

1. If the suit is against a corporation formed under the laws of this state: to the president or other head of the corporation, secretary, cashier, or managing agent thereof.

2. If the suit is against a foreign corporation, or a nonresident joint stock company, or association, doing business and having a managing or business agent, cashier, or secretary within this state: to such agent, cashier, or secretary. . . . . En. March 11, 1872. Amd. 1873-74, 298.

Association, service may be on one of the members of: Ante, sec.

388.

Legislative History.

This section is based on section 29 of the "practice act," enacted April 29, 1851, as amended 1854, page 69, and 1861, page 496. The original section did not have in the first subdivision the words "formed under the laws of the state."

Section Cited.

Practice Act: Aiken v. Mariposa M. Co., 6 Cal. 186; Kennedy v. Hibernia Savings etc. Soc., 38 Cal. 153. Code: Pacific Coast Ry. Co. v. Superior Court, 59 Cal. 473. Subd. 1: Railway v. Superior Court, 79 Cal. 104, 21 Pac. 609; Elder v. Grunsky, 127 Cal. 68, 59 Pac. 300; People v. Lee, 128 Cal. 332, 60 Pac. 54. Subd. 2: Eureka Lake etc. Co. v. Superior Court, 66 Cal. 315, 5 Pac. 490; Norton v. Atchison etc. R. R. Co., 97 Cal. 397, 33 Am. St. Rep. 198, 30 Pac. 585, 32 Pac. 452.

Annotation.

Service-Sheriff's Return.-The sheriff's return of service of summons is prima facie evidence of service on the officers named, and that such persons were such officers. (Rowe v. Table Mt. Water Co., 10 Cal. 444; Wilson v. Spring Hill etc. Co., 10 Cal. 445; Golden Gate etc. Co. v. Superior Court, 65 Cal. 189, 3 Pac. 628; Keener v. Eagle Lake etc. Co., 110 Cal. 630, 43 Pac. 14; People v. Lee, 128 Corporation Laws-31

Cal. 332, 60 Pac. 854; Mott Iron Works v. West Coast Plumbing Co., 113 Cal. 341, 45 Pac. 683.)

Service of summons in action against corporation when made on president is sufficient, and denial of presidency raises a question of fact to be determined by the court. (Mott Iron Works v. Plumbing Co., 113 Cal. 341, 45 Pac. 683.)

Affidavit that summons was served in statutory manner upon a person described as the managing agent of the corporation sufficiently shows that service was made upon the corporation and is prima facie proof that the person so served was the managing agent. (Keener v. Eagle Lake Co., 110 Cal. 627, 60 Pac. 854.)

And affidavit of service which states that injunction was personally served on superintendent and managing agent of corporation is prima facie evidence of valid service, although affiant further stated that he was "informed and believed" that the person served was such superintendent and managing agent. (Golden Gate etc. Co. v. Superior Court, 65 Cal. 187, 3 Pac. 628. To same effect: Keener v. Eagle Lake etc. Co., 110 Cal. 630, 60 Pac. 854.)

Service of Notice.-Service of notice on a corporation can be made in the same manner as the service of summons. (Pacific Coast Ry.

Co. v. Superior Court, 79 Cal. 103, 21 Pac. 609.) Managing Agent.-When a foreign corporation doing business in this state has not designated a person upon whom service of summons may be made it may be made upon its managing agent. (Thomas v. Placerville Mining Co., 65 Cal. 600, 4 Pac. 641. See Foster v. Betcher etc. Co., 49 Am. St. Rep. 862.)

"Managing agent" and "manager" means the same within the meaning of this section. (Pacific Coast Ry. Co. v. Superior Court, 79 Cal. 105, 21 Pac. 609.)

Foreign Corporation-Service on Designated Person.-Act of 1872. Service on person designated for that purpose under the act of April 1, 1872, is sufficient as long as such designation is unrevoked, although such person be not one of the persons designated in section 411 of the Code of Civil Procedure. (Eureka Lake etc. Co. v. Superior Court, 66 Cal. 311, 5 Pac. 490.)

Service of summons upon the superintendent of a foreign corporation while in this state not upon the business of the corporation is insufficient to confer any jurisdiction over the corporation. (Fox v. Hale & Norcross etc. Co., 108 Cal. 369, 41 Pac. 308.)

Service by Publication-No Official Within the State.-Where person on whom service is to be made is a foreign corporation, having no managing or business agent, cashier or secretary within the state, service on such corporation may be made by publication of sum(Code Civ. Proc., sec. 412.)

mons.