Davis v. Lezinsky

Vanclief, C. Action on a promissory note payable to A. Davis and Son, or order, hy whom it was alleged to have been assigned to the plaintiff. The note is set out in the complaint.

The complaint not being verified, the unverified answer of the defendant denies generally each and every allegation of the complaint; and for a further answer alleges that A. Davis and Son “has never complied with the provisions of sections 2466 and 2468 of the Civil Code of this state,” and “that Joseph Davis, the [127]plaintiff above named, is the sole member of the said firm of A. Davis and Son.”

The plaintiff had judgment, from which the defendant brings this appeal on the judgment roll, without a bill of exceptions.

The judgment is preceded by the following recitals: “ This cause came on regularly for trial this day before the court sitting without a jury, M. J. McGrath appearing as counsel for the plaintiff, and the defendant appearing in person. The cause was tried upon the papers and records on file herein, together with the statements made by the respective parties. There being no evidence offered, the cause was thereupon submitted to the court for consideration and decision, and now, the court having fully considered the same, it is ordered that judgment be, and the same is hereby, entered herein in favor of the plaintiff and against the defendant for five hundred dollars, and interest, in accordance with the prayer of the complaint. Findings are hereby waived.”

It is contended by appellant that the recitals in the judgment show that it was a judgment on the pleadings merely, without any proof of the assignment or nonpayment of the note.

The recitals show that the cause was tried upon the papers and records on file, together with the statements made by the respective parties, the defendant appearing in person. If nothing more than this had been recited, there would be no doubt that the judgment is correct. It is true that the further recital, viz., “There being no evidence offered,” taken in its technical sense, seems inconsistent with the recital preceding it; but the meaning intended may have been only that there was no sworn testimony, or that there was no other evidence than the statements of the parties and the papers on file, since it is possible that the court intended to distinguish the statements and admissions of the parties not made under oath from evidence. However this may be, the presumption is, that the judgment is cor