Silva v. Holland

Belcher, C. C. This is an action to recover the value of work and labor alleged to have been performed by plaintiff for defendants, who are husband and wife.

The answer denied all the allegations of the complaint, and alleged that there was a misjoinder of parties defendant.

Findings were waived by both parties, and judgment was given in favor of plaintiff for $374, and costs.

The defendants moved for a new trial, and have appealed from the judgment and order denying their motion.

The only point made for appellants relates to the alleged misjoinder of defendants. It is contended that it appeared from the evidence that the husband was alone responsible to the plaintiff, and that, there being no joint responsibility of defendants, the plaintiff should have been nonsuited on motion.

At the conclusion of the plaintiffs testimony the record recites that: “ Defendants here moved for a non-suit, which, after argument, was denied by the court, and the defendants excepted.” But the grounds of the motion were not stated, and for that reason, if for no other, the motion was properly denied. (Coffey v. Greenfield, 62 Cal. 608.)

If, however, the grounds of the motion had been stated, the ruling must have been the same. It was conceded by both defendants that plaintiff had performed labor for which he had not been paid; and the testimony introduced by him showed that he worked for the defendants in and about a business which they were jointly engaged in carrying on, and that the property used in that business was the separate property of the wife. In the absence of findings, it will be presumed that the court accepted this testimony as true.

[532]The statement on motion for new trial contains no specification of errors, or of particulars wherein the evidence is claimed to be insufficient to justify the decision. The statement must therefore be disregarded. (Code Civ. Proc., sec. 659.)

Looking at the whole record, we see no merit in the appeal, and the judgment and order should be affirmed.

Hayne, C., and Foote, C., concurred.

The Court.— For the reasons given in the foregoing opinion, the judgment and order are affirmed.