Epstein v. Gradowitz

LANGDON, P. J.

This appeal is by the plaintiff from a judgment against him in an action upon a promissory note.

The respondent objects to consideration of the appeal, stating that the request to the clerk for clerk’s and reporter’s transcript was filed too late. This notice was dated and filed December 1, 1922. The record shows that the judgment was entered August 15, 1922. There is nothing in the record to indicate the date upon which plaintiff was served with notice of entry of judgment. Section 953a of the Code df Civil Procedure provides that the notice to the clerk requesting transcript must be filed within ten days after

notice

of entry of judgment. Because there is nothing in the record to disclose the contrary, we must presume that the proceeding before us is regular and that the request to the clerk was filed in time. (Sec. 1963, Code Civ. Proc.)

The plaintiff brought an action upon a promissory note for $2,450, executed and delivered by the defendants. The

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defendants answered, setting up that there was no consideration for the note; that there was a complete failure of consideration for the same; that plaintiff is not the legal owner and holder thereof, and that said note should have been returned to the defendants. Defendant Meyer Gradowitz set up a separate and affirmative defense and with relation to the facts therein alleged the court found: That the plaintiff and defendant Meyer Gradowitz were co-partners in a wholesale produce business from January, 1921, to September, 1921, under the firm name of Gradowitz & Epstein; that said Gradowitz had invested $1,169.40 in said business and executed the note in dispute to equalize his interest in the business with that of his partner; that in September, 1921, the said business was indebted $4,300 and plaintiff sold his interest therein to one Cohn, who became a partner with Gradowitz under the firm name of Gradowitz & Cohn; that at the time of said sale, plaintiff canceled the note in dispute and agreed to deliver it to said Gradowitz and that said Gradowitz and Cohn agreed to pay and did pay the debts of the former partnership in the sum of $4,300 and that plaintiff failed and neglected to return to Gradowitz the note.