McKelvy v. Martin

YORK, J.

This is an appeal by defendant Martin from a judgment of $10,000 in favor of plaintiff.

The court found that the plaintiff and the defendant Martin entered into a written agreement with defendant Engelhart, who was the agent of the owner of an insurance agency, for the purchase of said agency for the sum of $30,000; that the price which the owner of the business was willing to take was the sum of $20,000, and that the said owner did in fact receive said sum of $20,000. The court further found that defendant Martin, in order to cheat, wrong and defraud the said plaintiff, made arrangements

[693]

with defendant Bngelhart whereby the latter was to represent to plaintiff that the actual price of the insurance business was $30,000, and to divide the difference between the represented price and the actual price, to wit: $10,000 —$7,500 to defendant Martin and $2,500 to defendant Bngelhart. As a conclusion of law from the foregoing facts, the court found that the plaintiff was damaged in the sum of $10,000, and judgment was entered for that amount against the defendant Martin. Before the introduction of any evidence, the cause was dismissed as to defendant Bngelhart.

No evidence was introduced on behalf of defendant Martin, and .the plaintiff was allowed by the court to file a (second) amended complaint to conform to proof, to which defendant Martin made a motion to strike and interposed a demurrer, neither of which was ever finally determined by the court. However, defendant Martin proceeded with his motion for a new trial, and when this matter came on for hearing, counsel for plaintiff urged that the matter be transferred for hearing and determination to Judge Bogue, who presided at the trial of the case, and who was no longer sitting in the superior court. Defendant Martin thereupon filed a petition for reassignment of his motion for a new trial, on the ground that the trial judge was biased and prejudiced of and concerning defendant Martin. Judge McLucas, to whom such petition of reassignment was referred, denied the motion.

Appellant now contends: First, that the court erred in denying his petition that hearing on motion for a new trial be reassigned; second, that the court erred in signing and filing findings of fact and conclusions of law based upon the amended complaint to conform to proof, while there remained undetermined appellant’s demurrer to and motion to strike from such amended complaint; third, that the second amended complaint to conform to proof stated a different cause of action from that alleged in the complaint upon which the parties went to trial; and fourth, that the evidence is insufficient to. justify the findings and conclusions of law, and that,, therefore, the judgment is unsupported by the evidence.