First National Bank of Dixon v. Spangler

BURNETT, J.

The action is on three promissory notes, for two thousand dollars, one thousand dollars, and five hundred dollars respectively—all executed by defendant N. R. Spangler. The theory of the plaintiff is that at the time of the execution of the notes the two defendants were co-partners engaged in the butcher business and that said notes represented the obligation of the firm although signed only by N. R. Spangler. The court found this theory to be true as to the two notes aggregating three thousand dollars but that the five hundred dollar note represents the sole obligation of N. R. Spangler, and judgment was rendered accordingly. The appeal is by Rose B. Spangler from the portion of the judgment against the firm, and she makes two points; one, that there was a misjoinder of causes of action, and the other, that the evidence does not support the finding that the money was borrowed for the use and benefit of the copartnership.

As we view the matter, there is no merit in either contention.

In reference to the first, the position of appellant is -that a cause of action against N. R. Spangler on the note for five hundred dollars was improperly joined with one against the partnership on the other two notes. But such defect must be taken advantage of either by demurrer or answer, or else it is waived. (Secs. 430 and 433, Code Civ. Proc.;

Baker & Hamilton

v.

Lambert,

5 Cal. App. 708, [91 Pac. 340].) Nothing appearing on the face of the complaint to indicate that the causes of action were

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against different parties, it was incumbent upon appellant to present the question by the answer. This was not done. It is not sufficient to say that she could not know until the decision of the lower court that the partnership was liable on two of the notes, and N. R. Spangler alone on the other. There was evidence of that situation and of appellant’s knowledge of it. We must assume, therefore, that she had sufficient information on the subject to enable her to set out said objection in the answer. At any rate, it would be preposterous to reverse the judgment on any such ground. If reversed for that reason, the result would be that the complaint would be amended by eliminating the count in reference to the five hundred dollar note, and the lower court would try the issue as to the other two notes and render the same judgment as the one appealed from herein. That would be of no advantage to appellant and would only entail delay and additional cost..