Southwestern Creditors Assn. v. Garvey

California Court of Appeal Dec 2, 1932 No. Docket No. 636.Published

Before: Ames

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Holding. The court affirmed the judgment in favor of the plaintiff, finding that the appellant failed to provide a sufficient record to demonstrate error regarding the taxation of costs, interest calculations, the validity of the instrument's transfer, or the denial of a continuance.

Issues

Whether the trial court erred in amending the judgment regarding the taxation of costs.
Whether the interest awarded in the judgment was excessive.
Whether the instrument in the second cause of action was invalid due to a lack of indorsement.
Whether the trial court abused its discretion in denying the defendant's motion for a continuance.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In the absence of all evidence in the record, we will presume that the costs were legally and regularly taxed within the time prescribed by law.”

“In the absence of evidence to the contrary, we will presume that the evidence was sufficient to support the implied finding that it was transferred to plaintiff.”

“Motions for continuance of trials are directed largely to the discretion of the trial court and in the absence of an abuse of such discretion its order will not be disturbed.”

AMES, J.,

pro

tem.

This action was brought for the purpose of recovering on two trade acceptances or bills of exchange. The complaint contains two causes of action, the first one of which alleges the execution of a trade acceptance by B. Hayman Company, Inc., drawn upon itself, in the sum of $1,028.65, dated March 13, 1930, and payable August 1, 1930, to the order of the drawer and which was accepted by the defendant on the eighteenth day of March, 1930. It then alleges “that said trade acceptance rose out of the purchase of goods, wares and merchandise by said defendant from said B. Hayman Company, Inc.”, and that no part of the sum of $1,028.65 has been paid except the sum of $528.65, which was paid thereon on the twentieth day of November, 1930. The complaint then alleges that B. Hayman Company, Inc., for a valuable consideration, assigned, transferred and set over all its right, title and interest in and to said trade acceptance to the plaintiff.

The second cause of action is similar in form to the first and is based upon a trade acceptance in the sum of $924.38 drawn by B. Hayman Company, Inc., upon itself, payable on the twenty-sixth day of October, 1930, and accepted by defendant on the twenty-ninth day of May, 1930, upon which nothing has been paid. In his answer defendant does not deny the execution of the instruments sued on or their acceptance by him and admits his indebtedness on the first cause of action in the sum of $500, and further pleads as an affirmative defense an agreement in which he alleges that plaintiff’s assignor failed to perform certain conditions of a contract of conditional sale, under the terms of which he alleges he purchased a certain tractor. Whether or not the tractor is the “goods, wares and merchandise” referred to in the complaint does not appear. In the complaint the instruments sued on are not set out

in haec verba,

[30]

but the legal effect is pleaded. From the recitals of the judgment it appears that written findings of fact were orally waived in open court and judgment was rendered in favor of the plaintiff on both causes of action. The judgment awarded plaintiff the sum of $1534.68 as principal and $110.30 interest, together with costs amounting to the sum of $16. Following the designation of that amount the words “amended to $30.50” appear in parentheses. From such judgment defendant appeals.

Southwestern Creditors Assn. v. Garvey

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AMES, J.,

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