Egan v. Bishop

California Court of Appeal Jun 27, 1935 No. Civ. 9206Published

Before: Shinn

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Holding. The court held that the plaintiff's records constituted a valid book account, the statute of limitations on such an account runs from the date of the last entry, and an account stated cannot revive claims already barred by the statute of limitations. Consequently, the judgment was modified to exclude items that were time-barred before the account was stated.

Issues

Whether the trial court erred in denying a motion for continuance based on the defendant's illness.
Whether the attorney's records were sufficient to constitute a single book account.
Whether the statute of limitations bars items in a book account individually or only the entire account from the date of the last entry.
Whether an account stated can revive claims that were already barred by the statute of limitations.

Disposition. modified and affirmed

Quotations verified verbatim against the opinion

“The law does not prescribe any standard of bookkeeping practice which all must follow, regardless of the nature of the business of which the record is kept.”

“The statute commences to run from the date of the last entry in the account.”

“The statement of the account did not revive them. (Code Civ. Proc., sec. 360.) The recovery was excessive in this amount.”

SHINN, J.,

pro

tem.

Plaintiff, as assignee of an attorney at law, recovered judgment, after verdict of a jury, on account of legal services rendered and for moneys advanced on behalf of the defendant. The complaint contained four causes of action, upon a book account, a mutual open and current account, an account stated and an account for services rendered and money advanced. Defendant appeals.

Extensive argument is made to the point that the trial court erred in denying a continuance. Motion for continuance was made October 10, 1932, in the calendar department of the court. We are told that the motion was based upon affidavits showing the defendant was ill in a hospital and unable to attend the trial. Affidavits to this effect appear in the clerk’s transcript. These affidavits bear the clerk’s filing mark of date October 11, 1932. The inclusion of affidavits in a clerk’s transcript does not bring them before an appellate court as constituting the record on a motion for continuance.

(Jeffords

Young,

197 Cal. 224 [239 Pac. 1054];

Gates

McPherson,

129 Cal. App. 473 [18 Pac. (2d) 980].)

Affidavits were presented to the court on motion for a new trial which purported to set forth the proceedings on the motion for continuance but these do not supply the deficiency.

[122]

The record upon which a motion for continuance is ■ heard must be authenticated either by bill of exceptions or reporter’s transcript certified by the judge. We are therefore unable to pass upon the merits of the motion for continuance made on October 10th.

On October 10th the case was continued to October 11th for trial. When it was called for trial in a trial department on the latter date the motion for continuance was renewed upon the same ground, namely, the absence of the defendant on account of illness. This motion was properly denied as the former order had been made with prejudice and unconditionally in the calendar department and could not be renewed upon the same ground in another department. (See. 182, Code Civ. Proc., then in effect.)

Egan v. Bishop

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SHINN, J.,

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