Coleman v. Woodworth

By the Court,

Sanderson, C. J. I. The first point made by counsel for appellants, to the effect that the cause of action set forth in the complaint does not survive against the personal representative of the defendants’ intestate, is answered by the one hundred and ninety-seventh section of the Act to regulate the settlement of the estates of deceased persons, which provides that “ any person or his personal representatives shall have an action against the executor or administrator of any testator or intestate who in his lifetime shall have wasted, destroyed, taken or carried away, or converted to his own use the goods or 'chattels of any such person, or committed any trespass upon the real estate of such person.”

II. The second point, to the effect that no proof was made of the presentment of the claim to the defendants for their allowance or rejection, as provided in the one.hundred and thirty-eighth section of the Act to regulate the settlement of the estates of deceased persons, is answered by the case of Hentsch v. Porter, 10 Cal. 555, where it was held that the objection [569]in question must be made in the Court below, and cannot be made for the first time in this Court. It does not appear from the record that the defendants, either at the trial, or on the motion for a new trial, in any form objected to a recovery on that ground. For the reasons stated in Hentsch v. Porter, the objection cannot be entertained by us. x

We cannot disturb tfie judgment upon the ground that the verdict is against the weight of evidence. Upon the question of title the evidence was conflicting, and we think it was fairly submitted to the jury by the instructions of the Court.

Judgment affirmed.

Mr. Justice Shafter expressed no opinion.