Great Western Gold Co. v. Chambers

[365]

SHAW, J.

This is an appeal from a judgment in favor of plaintiff against the defendant for the recovery of the sum of forty thousand dollars.

There was also an appeal from an order denying defendant’s motion for a new trial, which was disposed of by the affirmanee of the order in an opinion of this court in Bank, filed April 1, 1908, (153 Cal. 307, [95 Pac. 151].) The present appeal from the judgment was then pending and was, as counsel apparently then supposed, submitted with the appeal from the order. The printed transcript contained no copy of the notice of the appeal from the judgment, nor anything to show that such an appeal had been taken. This defect had been corrected by an order of the district court of appeal of the third district, made while the case was pending in that court, but when the case was transferred to this court after the decision of the district court, neither that order, nor any copy of it, or of the notice, was forwarded with the record to this court. In disposing of the case upon the former submission, the printed record alone was before us and, believing the appeal from the order denying the motion for a new trial to be the only appeal then pending, we refused to consider points which could arise only upon the appeal from the judgment. The latter appeal was, consequently, left undecided by the former opinion. At the solicitation of counsel the case was again placed on the calendar for argument upon the questions presented by the appeal from the judgment.

Treating the case as an action to recover specific sums of money belonging to the plaintiff, converted by defendant to his own use, or due from defendant to plaintiff in matters connected with the agency, or for damages caused by the fraudulent conduct and deceit of the defendant, and not for a general accounting of defendant’s transactions as plaintiff’s agent, it is apparent that the complaint states, or attempts to state, several causes of action, arising out of different transactions. The defendant claims that it must be so treated and upon that theory he asserts that there is a misjoinder of causes of action and that, as to some of the separate causes stated, there is no sufficient statement of facts.

It is not necessary to consider the question of misjoinder at all, or to consider the sufficiency of the statements of fact in the different causes of action, except the one declaring upon