County of Los Angeles v. Metropolitan Casualty Insurance Co.

A suit upon an undertaking furnished on behalf of a person charged with felony having been decided by the superior court in favor of the plaintiff, the defendant appealed.

The appellant states that the question presented is as to whether upon the record the period of limitation began to

It is insisted by the appellant that the cause of action arose, and" the limitation upon the time, within which an action could be instituted thereon commenced to run, when Stanton failed to appear for trial. The undertaking provided that the defendant would “appear and answer the charge . . . mentioned in whatever court it may be prosecuted, and will at all times hold himself amenable to the orders and process of the court, and if convicted, will appear for judgment and render himself in execution thereof, or if he fails' to perform either of these conditions, then we will pay”, etc. By section 1305 of the Penal Code it was then provided: “If, without sufficient excuse, the defendant neglects to appear for arraignment or for trial or judgment, or upon any other occasion when his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court must direct the fact to be entered upon its minutes, and the undertaking of bail, or the money deposited instead of bail, as the case may be, must thereupon be declared forfeited. But if at any time within twenty days after such entry in the minutes, the defendant or his bail appear and satisfactorily excuse his neglect, the court may direct the forfeiture of the undertaking or the deposit to be discharged upon such terms as may be just.” Section 1306 provided: “If the forfeiture is not discharged, as provided in the last section, the district attorney may at any time after twenty days from the entry upon the minutes, as provided in the last section, proceed by action against the bail upon their undertaking.” Prom the foregoing it seems apparent the surety was obligated to pay the amount agreed upon failure of the defend

Applied to a cause of action, the term to “accrue” means to arrive, to commence, to come into existence, to become a present enforceable demand. (Eising v. Andrews, 66 Conn. 58 [ 33 Atl. 585 , 50 Am. St. Rep. 75 ].). “A cause of action ‘accrues’ from the time the right to sue for the breach attaches.” (Walker v. Bowman, 27 Okl. 172 [ 111 Pac. 319 , 30 L. R. A. (N. S.) 642 , Ann. Cas. 1912B, 839].) A cause of action does not “accrue” until the party owning it is entitled to begin and prosecute an action thereon. It accrues at the moment when he has a legal right to sue on it, and not earlier. (Jocque v. McRae, 142 Mich. 370 [ 105 N. W. 874 ].) Many other cases might be cited to the same effect: Amy v. Dubuque, 98 U. S. 470 [ 25 L. Ed. 228 ]; McGuigan v. Rolfe, 80 Ill. App. 256 ; Port Arthur Rice M. Co. v. Beaumont Rice Mills, 105 Tex. 514 [ 143 S. W. 926 , 148 S. W. 283 , 150 S. W. 884 , 152 S. W. 629 ]; In re Hanlin’s Estate, 133 Wis. 140 [ 113 N. W. 411 , 126 Am. St. Rep. 938 , 17 L. R. A. (N. S.) 1189 ].

The statute directs that if the principal shall neglect to appear for arraignment, trial or judgment, or upon any other occasion when his presence in court is lawfully required, his bail must be forfeited. It places no limitation upon the time within which such forfeiture shall be entered. Until then he may appear with or without his surety, or he may appear within twenty days thereafter and with satisfactory excuse have his surety exonerated., Any attempt at enforcement of the undertaking prior to forfeiture would be futile. As was stated in an early case: “ ‘The law requires no man to do a vain thing, ’ is a familiar maxim, and certainly it would be vain to require a party to surrender to an officer having no power to detain him. ’ ’ (Allen v. Breslauer, 8 Cal. 552 .) It has on numerous occasions been held in other jurisdictions that forfeiture is a prerequi

The judgment is affirmed.

Stephens, P. J., and Archbald, J., pro tern., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on December 1, 1933, and the opinion amended to read as above.

A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on December 30, 1933.