Bates v. Visher
Before: Heydeneeldt
Synopsis
This was an appeal from the Fifth Judicial District, San Joaquin County.
The complaint stated, that the defendant was indebted to the plaintiff $4,117, for the recovery of which the suit was brought. The amount was made up of several items, of which an account was stated and annexed to the complaint.
The defendant answered, and denied that he was indebted to the plaintiff in the sum claimed, or in any sum1 whatever; that the goods, wares and merchandise, &c., exhibited in the plaintiff’s account, were for the joint benefit of the plaintiff and defendant, as partners in business, which said partnership has been dissolved; and avers that defendant had advanced to the said partnership, large sums of money, merchandize, &c., of greater value than the amount of plaintiff’s legal claims; and prays that the partnership account be examined and adjusted, &c., and for a decree, &c.
The only question in the case arose out of the appointment of the referees, to whom the case was referred. The record states as follows:
“Wednesday, February 4th, A. d. 1852. This day came the parties, by their attorneys; and the defendant, by his attorney, W. A. Root, Esq., moved the Court that this cause be referred for trial to referees, which motion was sustained. It is therefore ordered by the Court, that this cause be referred for arbitration.”
The Court appointed referees accordingly, who made report in favour of the plaintiff for $1,027; upon which judgment was entered, and from which defendant appealed.
The opinion of the Court was delivered by
Heydeneeldt, Justice. The error relied on to reverse this judgment, is, that the trial was by referees, and not by a jury, and that the reference was not authorized. On looking into the record, it appears that there is an entry upon the minutes, which recites that “ the parties came by their attorneys, and defendant by his attorney, moved the Court, that the cause be referred,” &c. Thus the reference was made on the appellant’s motion, and in one of the modes pointed out by law “ by oral consent in . open Court entered on the minutes.”
It is only necessary to state thus much to show that the ob[358]jection is entirely unsupported. Indeed the case must be treated as a delay case, and the judgment affirmed with ten per cent, damages and costs.
Anderson, Justice, concurred.
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)