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Billings v. Harvey

Billings v. Harvey, 6 Cal. 381 (1856)
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Court
California Supreme Court · State Highest Courts
Decided
July 1, 1856
Judges
Heydenfeldt
Citations
6 Cal. 381
Cited by 7
Syllabus
Under the Constitution of this State, the amendment of a statute operates as an absolute repeal of the old statute or section so amended, even if the amendment takes nothing away from the old law, but merely adds a proviso in certain cases. The Act of April 11th, 1855, amending the sixth section of the Statute of Limitations of 1850, by a proviso extending the time for commencing actions of ejectment under Spanish or Mexican titles, repeals that section in toto. It follows that the Act of 1855 is the only Statute of Limitations to actions for the recovery of real property, and that the time fixed therein runs only from the date of that Act.
Summary
Appeal from the District Coujrt of the Sixth Judicial District. This was an action of ejectment for certain town lots in the city of Sacramento. The complaint was filed October 17th, 1855. The defence set up was that the defendants had been in the actual and peaceable possession of the land adversely to the plaintiff, for over five years next preceding the commencement of this action. The plaintiff put in evidence the grant from the Mexican Government to John A. Sutter, for eleven leagues of land, known as the New Helvetia grant, and regular mesne conveyances to plaintiff. He also proved that in 1849, Sutter had under enclosure a portion of the land claimed by him under his grant, including the lots in dispute in this action. The defendants proved that they, and those under whom they claimed, had been in actual possession of the lots in controversy, since early in 1850. The grant to Sutter, dated June 18th, 1841, was made on certain terms and conditions not necessary to be recited in this case, as it ap- pears to have been introduced only to qualify his possession. On the trial, the Court, at the request of the defendant, charged the jury, that “ if it is shown by the evidence that the defendants and those under whom they claim, have held possession of the property in dispute adversely to plaintiff, for a period of five years before the commencement of this action, the jury should find a verdict for defendants.” To this instruction, among others, the plaintiff excepted, and the appeal seems to have been made on this question alone, there being no bill of exceptions or assignment of errors in the record. The jury found a verdict for the defendants. Plaintiff moved for a new trial, which was denied, and plaintiff appealed.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Heydenfeldt

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The opinion of the Court was delivered by Mr. Justice Heydenfeldt.

Mr. Chief Justice Murray concurred.

This is an action of ejectment, and the defence rests upon the Statute of Limitations. The 6th section of the Act of April, 1850, limits the time for commencing actions for the possession of lands to five years. Another Act was passed in April, 1855, amendatory of the first Act, by which the 6th section referred to, was amended and re-enacted.

The only question to be determined is whether the 6th section or the first Act remained in force as a part of that Act so as to fix the time when the statute commenced to run, or whether the time must date alone from the passage of the amendatory Act. It is here necessary to observe that the amendment of the 6th section takes nothing from that section as it originally stood, but only adds a proviso, which in no manner affects the operation of the section in the present case, provided it is still in force.

According to the ordinary construction of statutes, a mere amendment would not have the effect of changing the operation of the Act amended as to time, except so far as the alteration itself is concerned; hut under our Constitution a new rule was adopted for the amendment of statutes, totally different from that which had before prevailed. Section 25 of Art. 4, ordains that “ no law shall be revised or amended by reference to its title; but in ■ such case the Act revised or section amended, shall be re-enacted and published at length.”

From this language it appears too clear to require argument, that ir a statute or section of a statute is re-enacted, it is totally inconsistent with the idea that the old statute or section still remains in force, or has vitality for any purpose whatever.

The re-enactment creates anew the rule of action, and even if there was not the slightest difference in the phraseology of the two, the latter alone can be referred to as the law, and the former stands to all intents as if absolutely and expressly repealed.

It follows, necessarily, that the defence to this action cannot be maintained, and the judgment is therefore reversed and the cause remanded.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 7 cases

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1883–1884: 11891–1892: 11893–1894: 11901–1902: 11911–1912: 11923–1924: 11939–1940: 118832026peak 1883 · 1

Relies on it most ⓘ

  1. Buck v. Canty121 P. 924 (Cal. 1912)
  2. Sobey v. Molony104 P.2d 868 (Cal. Ct. App. 1940)
  3. Huffman v. Hall36 P. 417 (Cal. 1894)
  4. Central Pacific Railroad v. Shackelford63 Cal. 261 (1883) · Dissent
  5. Riley v. Havens225 P. 275 (Cal. 1924)
  6. Miller v. State69 S.W. 522 (Tex. Crim. App. 1902)

Most recent

  1. Sobey v. Molony104 P.2d 868 (Cal. Ct. App. 1940)
  2. Riley v. Havens225 P. 275 (Cal. 1924)
  3. Buck v. Canty121 P. 924 (Cal. 1912)
  4. Miller v. State69 S.W. 522 (Tex. Crim. App. 1902)
  5. Huffman v. Hall36 P. 417 (Cal. 1894)
  6. People v. McNulty28 P. 816 (Cal. 1891) · Dissent

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 0

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