Patten & Davies Lumber Co. v. Inman

SHAW, J.

In this action plaintiff sued to recover upon a draft drawn by William Durflinger upon and accepted by Charles T. Inman. In his answer Inman alleged that in accepting the draft he acted for and as agent of one F. H. Richman, and asked that he be made a party defendant to the action. Thereupon plaintiff filed an amended complaint making Durflinger, Inman, and Richman parties defendant, and wherein it was alleged that Inman in making the draft acted for and as agent of Richman. Durflinger suffered default.

[112]

Bichman filed an answer putting in issue the question of Inman’s alleged agency in acting for him, and the result of the trial was that, at the close thereof, the court made an order granting Bichman’s motion for a nonsuit, and gave judgment in favor of plaintiff as against Inman, fiom which he has appealed.

While appellant states that ,hé is “unable to find an error which would justify the reversal of the judgment in so far as the plaintiff'is concerned,” he nevertheless insists that the court erred in granting Bichman’s motion for a nonsuit.

[1]

The record is presented in accordance with the method provided in section 953a of the Code of Civil Procedure, but, conceding appellant’s right to have the alleged error reviewed, he omits to print in his brief any portion of the record showing, as required by section 953c of the Code of Civil Procedure, that the court erred in granting the motion. This alone, upon the authority of

Jones

v.

American Potash Co.,

35 Cal. App. 128, [169 Pac. 397], and

Anderson

v.

Recorder’s Court,

36 Cal. App. 123, [171 Pac. 812], is sufficient ground to justify an affirmance of the judgment.

[2]

It appears, however, that while defendant in his answer alleged that in accepting the draft he acted as agent for Bichman, he demanded no affirmative relief, but contented himself by asking that Bichman be brought in by plaintiff as a party to the action; hence it is apparent that Inman is not aggrieved by the ruling. He, conceding the ruling erroneous, is in no position to complain because the court denied plaintiff the relief which it asked against Bichman.