Abrams v. Howard

Crocker, J. delivered the opinion of the Court—Horton, J. concurring.

The respondent moves to dismiss the appeals in these cases, on [389]the following grounds: 1st, because the transcript contains no assignment of errors; 2d, because there is no statement on appeal; 3d, because it does not show that the appellant filed an undertaking on appeal, within five days after the notice of appeal ivas filed. The appellant has filed Ms assignments of error in this Court, wMch is all that is reqmsite. There is a statement on motion for new trial which answers the purpose of a statement on appeal. But if it did not, the absence of a statement on appeal is no ground for dismissing the appeal. The appellant has filed a certified copy of the undertaking on appeal, wMch shows that it was filed two days after filing the notice of appeal. The motion to dismiss the appeal is therefore deMed.

These actions were brought by the plaintiffs, married women, claiming to be sole traders, to recover the possession of certain personal property, against the defendant’s intestate, former Sheriff of San Francisco, who had levied an execution thereon, as the property of the plaintiffs’ husbands, who had formerly been engaged in business, -under the style of “Abrams & Bro.” At the trial, the plaintiff offered in evidence her declaration as sole trader, to which the defendant objected that it was insufficient, not bemg made in compliance with the Sole Trader Act. The declaration states as follows : that it is “ my intention to carry on and transact business on my own account and in my own name as sole trader, in pursuance of an act of the Legislature of the .State of California, entitled ‘An Act to authorize Married Women to transact Business in their own Eame, as Sole Traders,’ approved April 12th, 1852. And I further declare that the said business will be the buying and selling of goods, wares, and merchandise,” etc. The objection is, that the description of the business to be carried on is not sufficiently specific. TMs objection is not wefi taken. The busmess of a general merchant, is described with sufficient particularity.

The affidavit of the publication of the declaration as sole trader was also objected to, because it did not state that the publication was made for three successive weeks, in the terms of the statute. The affidavit states that the publication was made “ once a week for three weeks, viz.: from AprE 26th to May 20th, 1861.” The affidavit is sufficient on tMs point. If the first pubhcation was on