O'Neill v. O'Neill

THOMAS, J.

This is an action brought against the defendant, as executrix of the estate of John R. O’Neill, deceased, upon a claim, which had been rejected, in the sum of $5,222.05.

The complaint is in the usual form, alleging indebtedness “upon and according to a mutual, open, and current book account for money had and received.” The formal allegations of the complaint are admitted. By specific denial of the alleged indebtedness in said or any sum, and, by way of separate defense, an allegation that the plaintiff’s alleged cause of action was barred by subdivision 2 of section 337 of the Code of Civil Procedure, the issues were joined. The case was tried without a jury. Findings were in favor of the plaintiff on all the issues, and judgment was entered accordingly for the full amount asked. There was a motion for a new trial, which was denied. The appeal is from the judgment so entered.

The record before us consists only of the transcript and appellant’s opening brief.

The legal prerequisites for the bringing of an action on account,, such as is stated in the complaint in this action, within the saving clause of the statute are concretely set forth in the case of

Norton

v.

Larco,

30 Cal. 126, [89 Am Dec. 70],' to which, without quoting therefrom, we refer. Here the plaintiff has no records of his own that he has offered in evidence. His entire documentary evidence is taken from among the records—if such they may be denominated—found among the effects of the

decedent;

and, it would seem, therefore, that he is trying in this action to prove his claim by his interpretation of what the contents of the purported books are, and what they say.

[1]

It is urged that the court erred in permitting the plaintiff, over defendant’s objection, to introduce in evidence the document referred to in the record before us as “Plain

[774]