Damon v. Quinn

GRAY, C.

This is an action upon a promissory note to foreclose a mortgage securing the same. Plaintiff had judgment against all the defendants. The mortgagor, Mary Quinn, who also executed the note, appeals from the judgment. There is no bill of exceptions or statement of the ease.

1. The answer pleads partial failure of consideration, and also denies non-payment, and alleges part payment of the principal of the note. It is contended that these issues are not disposed of by the findings. As to the question of payment or non-payment and the amount paid, we think that is fully disposed of by the findings, reading as follows: “That there is now due and owing to the plaintiff, James E. Damon, from the defendant Mary Quinn, upon the promissory note and for money expended under the terms of said mortgage, as set forth and described in plaintiff’s complaint, the sum of $1,466.84, and that the defendant Mary Quinn is personally liable for the whole amount thereof. . . . That each and all of the allegations and averments in plaintiff’s complaint contained are true and correct.” A further answer to this contention is, that it does not appear whether any evidence was received as to these issues or not. We will not, to overthrow the judgment, infer from the fact that the judgment is less than asked for in the complaint that there must have been evidence introduced as to these issues favorable to defendant; but we will, in the absence of any record to the contrary,

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indulge in all proper presumptions to uphold the judgment. Accordingly, we will presume that there was no evidence making any additional or different findings necessary. “Error is not to be presumed, and if the appellant would contend that the court should have found for his counterclaim a greater amount, it was incumbent upon him to cause the record to show that such finding was required by the evidence.”

(Cutting Fruit Packing Co.

V.

Canty,

141 Cal. 692;

Himmelman

v.

Henry,