Vanderslice v. Matthews
Before: Foote
Synopsis
Appeal — Review op Errors — Set-off.—Upon appeal by a defendant from a judgment for costs in his favor, upon the allowance of a set-off against plaintiff’s claim, no question as to the correctness of the judgment against the plaintiff can be considered. If the appeal is upon the judgment roll, and the findings support the set-off, defendant can have no further judgment. dse — Set-off of Debt Secured.—In an action for the value of articles pledged, which were not returned upon demand and tender of the amount due, the indebtedness secured by the pledge is properly set off against the value of the articles.
Id.—Action for Return or Value—Estates of Deceased Persons— Amended Complaint — Statute of Limitations. — When an action is brought against an administrator for the return of articles pledged to the decedent or for their value, and the complaint is amended by striking out the prayer for their return, but alleging the same facts as alleged in the original complaint as the foundation of the action, there is no change in the identity of the cause of action, and the statute of limitations as to actions against the estates of deceased persons runs only to the filing of the original complaint.
Id.—Identification of Articles Pledged—Finding.—A finding that articles were pledged which correspond in description to the articles described in the complaint, and alleged to have been pledged, is a sufficient identification of the articles, without averring in the finding that they were the same articles described in the complaint, there being nothing in the record to show that the finding could have related to any other articles.
Id.—Loss of Pledged Articles — Pleading — Finding in Absence of Testimony. — When the answer in an action for the value of pledged property not returned upon demand and tender of the amount due pleads as new matter that the articles pledged were lost or stolen from the pledgee without fault or negligence, and there is no testimony upon the subject of such loss or stealing, it is proper for the court to find against the defendant upon the issue thus made.
Foote, C. This action was originally brought against Elizabeth D. Traylor, as the administratrix of the estate of W. W. Traylor, deceased. The complaint alleged that the plaintiff's borrowed a certain sum of money from W. W. Traylor in his lifetime, and gave him as collateral security for the payment thereof a certain watch and two pairs of diamond ear-rings, valued at two thousand dollars; that at Traylor’s death a part of the money borrowed remaining Unpaid, the plaintiffs, on the twenty-first day of November, 1883, tendered it to Elizabeth D. Traylor, the administratrix of said decedent, and demanded the return of the articles pledged as collateral; that she refused to return them; that afterward, on the twenty-fourth day of November, 1883, the plaintiffs presented for allowance to the administratrix their claim in writing against the estate of her decedent, duly verified, and containing all things necessary according to law, etc., upon which this action is founded, for the return of the-articles pledged or the value thereof, viz., the sum [275]of two thousand dollars; that upon the last-mentioned day the administratrix refused to allqjw the claim or any part of it, and wholly rejected it.
The prayer of that complaint is for judgment against the administratrix; that she return the property pledged, or in case a return cannot be had, for the value thereof, two thousand dollars, etc,, payable in due course of administration, etc.
This complaint was filed on the tenth day of January, 1884,—less than three months after the date of the rejection of the claim.
Afterward, by leave of the court, an amended complaint was filed on the seventh day of August, 1884. The allegations are the same in both complaints, the latter complaint differing from the first in the respect only that the prayer of the latter omits to ask for the return of the property, and confines the relief prayed for to a judgment, payable in due course of administration, for the value of the property,—two thousand dollars.
The administratrix answered the amended complaint, denying generally the facts alleged in it, and setting up the special defenses that the cause of action was barred by the statute of limitations under section 1498 of the Code of Civil Procedure; that the decedent lost the articles pledged without any fault or negligence on his part, and that they were stolen from him without his knowledge or negligence before coming into the custody of any representative of his estate.
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