[Civ. No. 2796. First Appellate District, Division Two.-July 10, 1919.]

STATE BOARD OF HEALTH OF THE STATE OF CALIFORNIA, Appellant, v. COUNTY OF ALAMEDA, Respondent.

[1] STATUTE OF LIMITATIONS-ERADICATION OF RODENTS-MONEY EXPENDED BY STATE BOARD OF HEALTH-ACTION AGAINST COUNTY.— An action brought by the state board of health against a county to recover for money expended for the eradication of rodents in that county pursuant to the provisions of the act of 1913 (Stats. 1913, p. 868), is barred by the provisions of section 342 of the Code of Civil Procedure where not commenced within six months after the first rejection of the claim by the board of supervisors. [2] ID.-APPLICATION TO STATE.-The statutes of limitation are applicable to the state, or any arm thereof, even though the cause of action arises in the exercise of its governmental functions. APPEAL from a judgment of the Superior Court of 'Alameda County. Wm. H. Waste, Judge. Affirmed.

The facts are stated in the opinion of the court.

Kemper B. Campbell for Appellant.

Ezra W. Decoto, District Attorney, and Theodore P. Wittschen, Deputy District Attorney, for Respondent.

LANGDON, P. J.-This is an appeal by the plaintiff, state board of health, from a judgment rendered against it in an action brought to recover from the county of Alameda the amount of three bills or demands presented by said board to the board of supervisors of Alameda County, which had been rejected by said board of supervisors. The demands were for the amount of money expended by plaintiff for the eradication of rodents on lands situated in the county of Alameda, and arose by reason of the provisions of a certain act entitled: "An act to prevent the introduction, and provide for the investigation and suppression

2. Applicability of statute of limitations to action by agencies of state, notes, 3 L. R. A. (N. S.) 746; 22 L. R. A. (N. S.) 9.1; L. R. A. 1916E, 96.

of contagious or infectious diseases, and appropriating money to be used for such purpose, " which is found in the Statutes of 1913, at page 868. This statute, as it read at the time of the expenditures represented by the demands, provided an appropriation of one hundred thousand dollars, which was to be used by the state board of health in such way as it saw fit for the eradication of rodents and other vermin liable to spread infectious or contagious diseases. For the amount spent on a given piece of property, the state board of health was authorized to file a bill with the board of supervisors of the county within which the property was situated, which body is directed by the act to allow the bill as filed at its next regular meeting. After payment by the county, it is given a lien for the amount of the demands so paid against the property mentioned therein, and upon which the money was spent for the purpose specified in the act. The defendants demurred to the complaint upon three grounds, and judgment was entered upon the demurrer, the plaintiff having refused to amend its complaint. [1] It is only necessary under the conclusion we have reached to consider one ground of objection stated in the demurrer, as that objection is decisive of the present action. It is that the alleged cause of action is barred by the provisions of section 342 of the Code of Civil Procedure, which section reads as follows: "Actions on claims against a county, which have been rejected by the board of supervisors, must be commenced within six months after the first rejection thereof by such board." We fail to see the force of the distinction sought to be made by the appellant between a bill or demand presented to the board of supervisors and a claim presented to that body.

The complaint stated that certain of the demands upon which the action is founded were rejected by the board of supervisors of Alameda County on December 27, 1915, and that others were rejected on March 6, 1916. The present action was not commenced until June 1, 1917, almost fifteen months after the last claim had been rejected.

[2] Appellant argues that the statutes of limitation are. not applicable to the state in any case where the cause of action arose in the exercise of its governmental functions, and cites numerous authorities in which this common-law rule is announced. The answer to this objection is that the

rule has been changed in this state by express code provision. Section 345 of the Code of Civil Procedure, which is found in the same chapter as section 342 of the Code of Civil Procedure, above quoted, reads: "The limitations prescribed in this chapter apply to actions brought in the name of the state, or for the benefit of the state, in the same manner as to actions by private parties. . . .

Clearly, the state board of health is but an arm of the state and comes within the provisions of the last-quoted section.

The demurrer was properly sustained and the judgment is affirmed.

Haven, J., and Brittain, J., concurred.

[Civ. No. 2976. Second Appellate District, Division One.-July 10,

1919.]

JAMES D. HAND, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents.

[1] SUMMONS-RESIDENT OF ANOTHER STATE-PRIVILEGE FROM SERVICE IN THIS STATE.-A person living in a foreign state, where he is a party to litigation there pending, is not privileged from the service of process upon him in an action brought in this state when he comes into the state of his own volition and for his own interest as an attendant at the taking of a deposition to be used in the trial of the action in the foreign state.

APPLICATION for a Writ of Prohibition to restrain the Superior Court of Los Angeles County and Grant Jackson, Judge thereof, from further proceedings in an action wherein petitioner, a resident of a foreign state, had been personally served with a summons in this state. Proceeding dismissed.

The facts are stated in the opinion of the court.

Edmon G. Bennett and Lewis D. Collings for Petitioner.

Reginald W. Clapp for Respondents.

SHAW, J.-This is an application for a writ of prohibition. Petitioner, who is a resident of Illinois, was plaintiff in an

action wherein Edwin M. Allen et al. were defendants, then pending in one of the courts of that state. He came here to attend the taking of depositions to be used in the trial of the case, and while present in the office of the commissioner before whom the depositions were made he was served with a summons in an action brought against him in the superior court of Los Angeles County. Claiming that by reason of the facts he was privileged from service of such process, he appeared specially and moved the court to quash and vacate service of the summons. This motion was denied; whereupon he filed this petition to restrain the court from further proceedings in the action.

[1] The authorities of other jurisdictions involving the question as to what extent a nonresident party to an action attending the trial of the case is exempt from service of process issued in another action therein brought are by no means uniform. Many of them relate to the question of immunity granted witnesses from arrest while attending as such upon the trial of cases, the rights of whom, however, in this state are fixed by section 2067 of the Code of Civil Procedure. As to the rights of parties to actions, where they are nonresidents of the state wherein the trial is had, one line of argument is illustrated by Burroughs v. Cocke & Willis, 56 Okl. 627, [L. R. A. 1916E, 1170, 156 Pac. 196], and Cooper v. Wyman, 122 N. C. 784, [65 Am. St. Rep. 731, 29 S. E. 947], upholding the privilege of immunity to parties, while other cases, such as Guynn v. McDaneld, 4 Idaho, 610, [95 Am. St. Rep. 158, 43 Pac. 74], Baldwin v. Emerson, 16 R. I. 305, [27 Am. St. Rep. 741, 15 Atl. 83], Baisley v. Baisley, 113 Mo. 544, [35 Am. St. Rep. 726, 21 S. W. 29], and Bishop v. Vose, 27 Conn. 1, may be cited in support of a contrary view. The reason for granting immunity to suitors is varied. By some of the authorities it is based upon a personal privilege of the suitor, and by others upon the fact that public policy demands that the courts should not be hampered by having those in attendance upon trials interfered with by other litigants. These reasons, however, have no application to the instant case, for the reason that petitioner was not a party to the trial of any action in this state; he was not a witness, nor was he in attendance upon any court whose proceedings could be hampered by the service of process upon him. He was

merely, of his own volition and for his own interest, an attendant at the taking of a deposition on behalf of his adversary, and the notary public acting as commissioner before whom the depositions were taken was not answerable to the court before which the action was pending for anything said or done, the entire proceeding being outside of its jurisdiction. (Greer v. Young, 120 Ill. 184, [11 N. E. 167].) Hence, while it may be for the purposes of this case conceded that in furtherance of justice parties to actions and their witnesses should be privileged not only from arrest, but from service of summons, while in attendance upon the trial of a cause, such rule has no application to the case of a party living in a foreign state, where he is a party to litigation there pending, and attends in this state for the purpose of taking testimony out of court. In order to come within the rule, the proceeding must in any event be one in court or a similar tribunal. Quoting from Parker v. Manco, 61 Hun, 519, [16 N. Y. Supp. 325], the courts of which state fully recognize the rule invoked by petitioner: "We think, therefore, that the coming into this state, for the purpose of being present upon the taking of testimony to be used in an action in another state, neither comes within the spirit nor the letter of the rule to which attention has been called, and that the defendant [petitioner here] was liable to service of process, and the service of summons herein."

The proceeding is dismissed.

Conrey, P. J., and James, J., concurred.

[Civ. No. 2128. Second Appellate District, Division Two.-July 10, 1919.]

IRA H. STUBBS, Respondent, v. MARY E. ABERCROMBIE et al., Defendants; HARLAN G. PALMER, Appellant.

[1] CRIMINAL LAW-SUFFICIENCY OF

COMPLAINT.-In determining

whether a criminal complaint states a cause of action, courts are limited to the contents of the complaint. It is not a question as to what the evidence on the trial may disclose.