Summary
In Ganahl v. Soher (1884) 2 Cal. Unrep. 415 [5 P. 80], the question arose in this court whether the plaintiff had filed his action within the allowable five-year statute of limitations, which began running when he attained majority.
Summary of this case from In re HarrisOpinion
Department 1. Appeal from the superior court of the city and county of San Francisco.
SYLLABUS
STATUTE OF LIMITATIONS--RIGHTS OF MINOR, WHEN BARRED.
The time within which a minor may assert his rights, or commence an action for an interest in real property, is five years from the time of attaining his majority. The time of his minority is calculated from the first minute of the day on which he is born to the first minute of the day corresponding which completes the period of minority; and, in calculating the time within which he may thereafter bring such action, as he attains majority on the first minute of a day, the whole of that day is to be calculated as the first day of the five years within which he may bring the action.
Carter P. Pomeroy, for appellant.
Hy. J. Tilden, for respondent.
ROSS, J., McKEE, J.; McKINSTRY, J.
OPINION
ROSS, J.
The plaintiffs claim title to the lot of land in controversy as the heirs at law of Henry Ganahl, who died intestate, in the state of Georgia, on the twelfth day of May, 1855. That whatever rights, if any, the plaintiffs Maria Ann and Ann Elizabeth Ganahl acquired in the premises as such heirs at law became barred by the provisions of the statute of limitations prior to the commencement of this action, admits of no question. The remaining plaintiff, Henry Gordon Ganahl, was born April 11, 1855. Sections 25 and 26 of the Civil Code of this state provide:
"Sec. 25. Minors are (1) males under twenty-one years of age; (2) females. under eighteen years of age.
"Sec. 26. The periods specified in the preceding section must be calculated from the first minute of the day on which persons are born to the same minute of the corresponding day completing the period of minority."
Under the rule prescribed by the section last quoted, Henry Gordon Ganahl became of age the first minute of the eleventh day of April, 1876, and by virtue of section 328 of the Code of Civil Procedure he was entitled to commence an action for the recovery of whatever interest he had in the land within the period of five years thereafter, but not after the expiration of that period. In computing the period of five years we must include the eleventh day of April, 1876, because, as the plaintiff in question attained his majority the first minute of that day, he had the whole of the day in which to sue; and computing that as the first day of the five years, the whole period of five years expired with the tenth day of April, 1881, and the action not having been commenced until the eleventh of April, 1881, was barred by the provisions of the statute. We are not, therefore, called upon to consider any other question in the case.
Judgment and order affirmed.
We concur: McKEE, J.; McKINSTRY, J.