Horwege v. Sage

California Supreme Court Oct 29, 1902 No. S.F. No. 2341.Published

Before: Chipman

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Holding. The court held that in the absence of a bill of exceptions, it must be presumed that all issues, including equitable ones, were either submitted to the jury by consent or that the defendants failed to present evidence supporting their cross-complaint.

Issues

Whether the trial court erred by failing to make findings on equitable issues raised in a cross-complaint when the judgment-roll shows only a jury verdict on the legal claim.
Whether the appellate court should presume error in the trial procedure when the record does not affirmatively show that the defendants requested separate findings or objected to the jury trial of all issues.

Disposition. affirmed

Quotations verified verbatim against the opinion

“This court will not presume error, nor will it presume that something was done or omitted to be done which constitutes error, for error must be made affirmatively to appear.”

“In support of the judgment it will be presumed that all the issues presented by the pleadings were by consent of defendants submitted to the jury, under proper instructions of the court, and were passed upon in arriving at their verdict.”

Synopsis

The facts are stated in the opinion.

Campbell & Metson, J. C. Campbell, W. H. Metson, and Henry E. Highton, for Appellants.

CHIPMAN, C.

Action on promissory note executed by defendant Sage to plaintiff on June 26, 1899, due thirty days after date, payment of which is alleged to have been guaranteed by defendants Cote and King, by indorsement on the note, waiving demand of payment, notice of non-payment, and protest. The cause was tried by a jury and the verdict went for plaintiff for an amount fixed by the jury. Judgment was accordingly entered.

Defendants set up in their answer, and by way of cross-complaint, what is claimed to be an equitable defense, and also asking affirmative, equitable relief, raising issues, as is claimed, on which the court made no findings, and which, it is said, have not been adjudicated and determined. The appeal is by defendants on the judgment-roll alone, which contains only the pleadings, verdict of the jury, and judgment on the verdict. The action was brought by the payee, and, of course, after maturity of the note. It was alleged in the answer and cross-complaint that the note was obtained by fraudulent and false representations, on the truth of which defendants relied, particular facts constituting the alleged misrepresentations being set forth; and it was alleged that, on discovery of the alleged fraud, defendant Sage, maker of the note, gave notice of rescission. Defendants’ prayer was, that it be adjudged that the note be surrendered and canceled upon the maker concurrently restoring to plaintiff the consideration, which was a half-interest in a certain liquor business which Sage had purchased from plaintiff.

Appellants contend that the judgment-roll conclusively shows that there has been neither trial nor waiver of trial of the equitable issues presented by the cross-complaint, for the reason that the verdict was a judgment at law and the equitable issues were ignored; that these issues should have

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been first tried and disposed of; that if sustained it would have rendered unnecessary any trial at law on the issues presented by the complaint; and to show that this is the proper and orderly course of procedure, appellants cite

Swasey

Adair,

88 Cal. 179, (where previous decisions on the point are cited and considered,) and some other eases.

Horwege v. Sage

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Synopsis

CHIPMAN, C.

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