Ziel, Bertheau & Co. v. Dukes
Before: Terry
Synopsis
Appeal from the Fourth District, County of San Francisco.
This was a bill to set aside a judgment upon the ground of fraud, and for an injunction restraining the collection of the judgment.
The facts are thus stated by the Court:
“ It appears that Dukes executed a note for $3,000, in favor of Jacobs, on the twentieth of October, 1857, payable on 6 demand, after date.’
“ Suit was commenced on this note on the nineteenth of November, and judgment taken on the first of December.
“ Plaintiffs, who are judgment creditors of Dukes, seek to set aside this judgment as fraudulent. No actual fraud is shown; the objections urged' by the appellant being that the judgment is fraudulent in law ; because—First. The suit by Jacobs was commenced before the note was due ; and, Second. Judgment was taken for more than was actually due on the note.”
The Court below decreed that the judgment of Jacobs be set aside as to all over the sum of $3,000, and as to that amount the judgment stand; and the attachment issued and levied in the suit of Jacobs v. Dukes, have priority, as a lien upon the property seized, over that of the plaintiffs, as to the amount of $3,000 and costs of suit. Plaintiffs appealed to this Court.
Terry, C. J., delivered the opinion of the Court—Field, J., and Baldwin, J., concurring.
Neither of the points in this case are well taken.
The note was presently due, and it was not necessary to show any actual demand to enable Jacobs to recover.
“ If a note be made payable at sight, or at ten days after sight, or in ten days after notice, or on request or on demand in all these and the like cases, the note will be held valid as a promissory note, and payable at all events, although, in point of fact, the payee may die without ever having presented the note for sight, or without giving any notice to, or made any request or demand upon the maker for payment. But the law, in all cases of this sort, deems the note to admit a present debt, to be due to the payee, and payable absolutely at all events, whenever, or by whomsoever, the note is presented for payment, according to its purport. Nay, where a note is payable ón demand, no other demand need be made, except by bringing a suit thereon. So, where a note does not specify any day or time of payment, it is by law deemed payable on demand, and, therefore, is construed as if it contained the words ‘ payable on demand ’ on its face.” Story on Prom. Notes, sec. 29.
The second point is predicated on the fact, that by an error in computing interest, judgment was rendered for $27.50 interest, when the interest due is, by appellant’s calculation, only a fraction over $26.
It does not appear whether this error was made by the Clerk, who entered the judgment, or by the plaintiff; at any rate, it is clear that it is the result of a mistake, and we presume.no precedent can be found for annulling the judgment for such a cause.
Judgment affirmed.
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