Santa Rosa Bank v. Paxton

SHAW, J.

This appeal is taken from the judgment, by the defendant Charles E. Paxton, and is presented upon the judgment-roll alone. The appellant has no apparent interest in the case, except as one of the executors of the will of Hannah H. Paxton, deceased. His appeal purports to be taken by him in his

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individual capacity, but as the respondent makes no objection on the ground of want of interest in the appellant, we have considered the appeal as if it were taken by him as executor.

The complaint states a cause of action to recover judgment upon four promissory notes, executed to the plaintiff by the deceased in her lifetime, and to foreclose a lien upon certain personal property pledged as security for the payment of the notes. Each note is copied in full in the body of the complaint, and it is alleged, with respect to each, that the deceased “by and through her attorney in fact, B. W. Paxton, made, executed, and delivered to the said plaintiff herein, ’' the said note. Concerning the authority of the attorney in fact to execute the notes it is alleged that the deceased “made, executed and delivered to B. W. Paxton an instrument and power of attorney whereby the said Hannah H. Paxton authorized and empowered the said B. W. Paxton as her attorney in fact, and to appear and act as and for the said Hannah H. Paxton in her affairs and business transactions, in accordance with the terms and conditions set forth and the authority given by said instrument and power of attorney .... which said instrument and power of attorney is hereunto annexed and referred to and marked Exhibit ‘A,’ and made a part of this complaint.” The power of attorney is annexed to the complaint as stated. It is not ambiguous in its terms, and is in all respects sufficient to empower B. W. Paxton, for and in the name, place, and stead of Hannah H. Paxton, to execute the notes sued on.

The only objection now offered to the complaint is that there is no allegation therein that B. W. Paxton was authorized to execute, as the attorney in fact of Hannah H. Paxton, the notes sued upon. The point urged is that in such a ease the allegation of authority must be made in the body of the complaint, and cannot be made by a reference to an exhibit attached thereto and made a part thereof.