Borges v. Hillman

BURNETT, J.

The suit was upon an undertaking executed by defendants. Therein they guaranteed the payment of the costs on appeal from an order' appointing a receiver in an action brought by Joseph F. Borges against Ida J. Dunham to have it decreed that said plaintiff was the owner of a certain tract of land comprising 170 acres, and that said defendant held the same in trust for the use and benefit of said Borges, and to recover the rents and profits of said land. In said undertaking the sureties also made themselves liable for the payment by said Dunham of said rents and profits, limiting, however, their responsibility for both purposes to the sum of $1,000. The judgment was in favor of plaintiff for the sum of $839, from which the appeal has been taken. A similar action was brought in 1915, and it was claimed by defendants, among other things, that it was premature, since the judgment in the original action had not become final. This view was adopted by the trial court and the judgment was affirmed herein. The said original judgment became final, by virtue of the action of the supreme court in dismissing the appeal October 13, 1919. Thirty-one days thereafter this action was brought

[400]

and resulted as we have stated. The facts are fully set forth and-the validity of said undertaking upheld in the decision of this court, speaking through Justice Hart in

Borges

v.

Hillman,

29 Cal. App. 144, [154 Pac. 1075]. That decision is virtually determinative of this appeal, and only brief consideration is required of two or three additional points made by appellants.

[1]

The contention that the action is barred by the statute of limitations is virtually answered by said decision of this court. It being held therein that the action against the sureties would not lie until the original judgment became final and this suit having been brought in thirty-one days thereafter, manifestly there is no merit in this claim.

It appears that the only issue of fact involved in the trial was as to the amount of rent received from the tenant by Ida J. Dunham. As to this the evidence was abundantly sufficient to support the finding of the trial court. Specific attention is called to said testimony in the brief of respondent and no reply is made thereto by appellants.