Alpers v. SchamMel
Before: Thornton
Synopsis
Pleading — Partnership — Promissory Note. —The complaint in an action on a promissory note, after alleging that the defendants at all the times therein mentioned were partners, averred that “the said defendants, copartners as aforesaid,” executed the notes in question: held, a sufficient averment that the notes were executed by the defendants as copartners.
Verdict—Evidence—Specifications of Particulars.—A verdict cannot be attacked on the ground that it is not supported by the evidence, when the record contains no specifications of the particulars in which the evidence is insufficient to sustain it.
New Trial — Notice of Intention—Record on Appeal.—A notice of intention to move for a new trial is not part of the record on appeal, unless incorporated in the statement or hill of exceptions.
Id. — Verdict against Law — Order Refusing New Trial — Appeal. — An alleged error in refusing a new trial, on the ground that the verdict is against law because unsupported by the evidence, will not be considered on appeal from the order refusing the new trial, when the notice of intention to move for a new trial is not made part of the record.
Id. — Action against Partners — Verdict — Judgment — Default— Defendant not Appearing. — The action was brought against three defendants, constituting a partnership, on certain promissory notes executed by them as partners. Two of the defendants appeared and answered. The other did not appear, and no default was entered against him for not answering, and the record did not affirmatively show that he had been served. The record showed, however, that he died two days after the commencement of the action. The jury returned a general .verdict in favor of the plaintiff, on which judgment was entered against all the defendants. Held, that the verdict and judgment, so far as they purported to be against the defendant not appearing, were erroneous, and should be modified accordingly.
Id.—Judgment on Verdict — Interest how Entered. — A judgment entered on a verdict should be for the amount of the verdict, with interest at the legal rate from the day on which it was returned by the jury; and the clerk has no authority to include in the amount of the judgment the interest which has accrued on the verdict from the time of its rendition until the time of the entry of judgment, and provide that such gross amount shall thereafter bear legal interest.
Thornton, J. Action on two promissory notes. It is urged that the complaint does not show that the notes in suit were executed by the defendants as copartners. We cannot concur with counsel in this contention. We are of opinion that it is substantially averred that the notes were executed by defendants as copartners. This being so, there is no variance between the proof and the allegations of the complaint.
Further, there was no objection made to the notes when offered in evidence on the ground that they varied from the averments of the complaint. If such objection had been made, it might have been obviated by amendment. And as the cause was tried—as it clearly appears it was—as if the notes had been averred to have been the notes of the copartnership, we deem it unnecessary to say anything further on this point.
It is contended that the delivery of the notes is not shown by the evidence, but the verdict is not attacked on any such ground, as there are in the record no specifications of the particulars in which the evidence is insufficient to sustain the verdict. The point urged cannot therefore be considered.
[593]The further contention is made that the verdict is against law, for the reason that there is no evidence that there was a delivery to the plaintiff of the notes sued on, and the court therefore erred in refusing a new trial. The notice of intention to move for a new trial is no part of the record herein, unless made so by a statement or bill of exceptions (Hook v. Hall, 68 Cal. 22); and as the notice does not appear in the statement herein, the point is not before us for consideration.
It is averred in the complaint that Henry Schammel, Frank B. Reynolds, and William L. Bolte, constituted the firm of Schammel, Reynolds, & Co. The two first mentioned appeared and answered. There was no appearance by Bolte, and no entry of default against him; for not answering. There is uncontradicted evidence in the record that Bolte committed suicide within two days after the action was begun; and as his default was not entered, it may well be inferred that he was not served. The cause came on for trial on the twentieth day of February, 1884, and on the same day a verdict was entered in the following words:—
“We, the jury, in the above-entitled action, find for the plaintiff, and assess the .damages in the sum of thirty-six hundred and eighty-six and 35-100 dollars ($3,686.35).”
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