Gray v. Craig

PULLEN, P. J.

This is a motion to submit upon appellant’s opening brief, no points and authorities being filed on behalf of respondents. The motion being granted, we will consider the appeal on its merits.

From the complaint it appears that respondent Craig and the appellant entered into a contract whereby the possession of certain personal property was delivered by respondent Craig to appellant, who agreed to use and care for the same, and to deliver to respondent Craig fifty per cent of the yield therefrom for five years, and if the share delivered amounted to $4,000, appellant was to become the sole owner of the personal property so delivered.

Thereafter appellant alleges the respondent, actuated by express malice, caused an action to be filed against him in the justice’s court of Kern County, presided over by T. A. Baker, one of the respondents. Appellant defaulted and a judgment was entered against him. In due time an execution was issued and levied upon the property described in the agreement, and thereafter sold in partial satisfaction of the judgment.

It is alleged that the respondents conspired together to abuse the processes of the court and thereby to oppress and injure appellant and to deprive him of his rights under the agreement between himself and respondent Craig.

Upon issue joined, the trial court entered judgment in favor of the plaintiff and against defendant Craig for nominal damages in the sum of $50, and upon the counterclaim of defendant Craig entered a judgment against plaintiff in the sum of $50, and judgment in favor of the remaining respondents and against appellant.

Appellant, being dissatisfied, prosecutes this appeal and brings his objections to the rulings of the trial court here by a bill of exceptions.

The first point urged for reversal is that the plaintiff was denied the right of trial by jury. It appears that at the time of the setting of the cause for trial, appellant demanded in writing a jury but failed to deposit with the clerk of the court a sum equal to one day’s jury fees pay

[376]

able under the law, as required by the rules of the court and section 631 of the Code of Civil Procedure, subdivision 5.