Shadburne v. Daly

Thornton, J. This action was brought against the defendant as drawer of an order of which the following is a copy:—

“$315. San Francisco, August 8,1885.

“William Younger: Please pay William A. Plunkett, or order, the sum $315, and charge the same to my account. “Annie E. Daly.”

This order was on the 10th of August, 1885, indorsed by Plunkett to plaintiff.

The order was presented to Younger, who refused to accept it, of which defendant was duly notified.

The point is made by the respondent that the bill of exceptions contains “no specification of particulars,” and should, therefore, be disregarded. We find no defect in this regard in the bill. No point is made by appellant as to the insufficiency of the evidence to sustain the verdict, and therefore no specification of the particulars in which such evidence is insufficient is required.

No specification of the- particular errors of law on which the appellant will rely is made in her bill. But while this is required in a statement of the case (Code Civ. Proc., sec. 659, subd. 3), it is not in a bill of exceptions. (Code Civ. Proc., sec. 650.) The point of respondent, therefore, is not tenable.

We have examined the testimony given in the case on behalf of the plaintiff, and are of opinion that defendant’s motion for a nonsuit was properly denied. There was some evidence on each point on which defendant based her motion.

The court did not err in refusing to the defendant, leave to file an amended answer. The motion for leave was made on the eve of the trial, when a jury was in attendance. Moreover, we cannot perceive that defendant was injured by the refusal. The cause was tried as if all the matters set forth in the amended answer were pleaded. Counsel for appellant urges nothing to the contrary of this. He states in his points that “the amended [357]answer did not materially change the issues, but tendered them in more proper legal form, bringing the defense directly under” certain sections of the Civil Code, the numbers of which he gives.

W. A. Plunkett, assignor of plaintiff, was attorney for George Daly, the husband of defendant, in certain proceedings in bankruptcy, prosecuted under the United States bankruptcy act of March 2, 1867. Daly’s petition in bankruptcy was filed on the 14th of March, 1873. After the commencement of the proceedings, two actions were commenced against Daly, one by Goodwin & Co., for furniture, and the other by Frank G. Edwards, for carpets. The suit of Goodwin & Co. was commenced on the 15th of March, 1873, in the third district court. The suit of Edwards was commenced in the same court on the 27th of March, 1873. In the suit of Goodwin & Co., the plaintiffs attached the furniture for the price of which they were suing. Under Plunkett’s advice Daly filed no answer in either of the cases. Undertakings were given to release the property attached, and the causes proceeded, it would seem, to judgment. Plunkett testified that he told Daly not to answer, as he could not do so without committing perjury. After obtaining the judgments, the plaintiffs tried to enforce them, and Plunkett commenced a suit in equity in the United States district court, asking for a restraining order. A restraining order was procured in the action, and some days later a perpetual injunction was had restraining the enforcement of the judgments. The plaintiffs were thus defeated, and the furniture was set aside to Daly in the bankruptcy proceedings.