Clark v. Gridley
Before: Crockett
Synopsis
Review oe Evidence on Appeal.—The Supreme Court cannot review the evidence for the purpose of determining whether it is sufficient to support the judgment, unless the appeal is taken within sixty days from the entry of the judgment.
Notice of Intention to Move fob a New Tbiab.—The party intending to move for a new trial must file, with the Clerk, and serve upon the adverse party, notice of his intention to do so, within thirty days after the decision or verdict.
Partnership in a Venture. — When two parties, residing in different places, agree, the one to buy and ship wool, and to pay for the same to draw on the other, and the other to pay the drafts, and sell the wool in a home or foreign market, charging interest for his advances, the two to share equally the losses, or to divide equally the net profits; the parties are partners in the venture.
Pabtnbbship Books as Evidence.—If two persons who are partners enter into a partnership with a third person residing in another place, and the accounts of the new partnership are kept in the books of the old partners, but are kept separately and not mingled with other accounts, and such third person has access to them, and knows that they are so kept, and makes no objection that they are not kept in separate books, the books are admissible in evidence in an action between the partners, for the purpose of proving the state of the partnership accounts.
By the Court, Crockett, J.: 1. The defendant’s notice of his intention to move for. a new trial was not served or filed within the time required by law, and the motion was properly denied on this ground.
2. The appeal from the judgment was not taken within sixty days after the judgment was rendered; and, under section nine hundred and thirty-nine of the Code of Civil Procedure, we cannot on this appeal review the decision on the ground that it is not supported by the evidence.
3. The plaintiffs and defendant were clearly partners in the venture to which the contract between them related; and the partnership accounts, though kept in the books of the plaintiffs, were not intermingled with other accounts, but were separately stated; and the evidence shows that the defendant not only had access to the books when he desired, but knew that the partnership accounts were so kept, and made no objection on the ground that they were not kept in separate books. Under these circumstances the books were properly admitted in evidence.
The other points made by counsel for the appellant are without force, and need not be specially noticed. The appeal is without merit.
Order and judgment affirmed, with ten per cent, damages. Remittitur forthwith.
Mr.. Justice Rhodes did not express an opinion.
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