Dougall v. Schulenberg

California Supreme Court Jan 26, 1894 No. No. 19238Published

Before: Temple

AI Brief

AI-generated · verify before citing

Holding. The court affirmed the judgment and order denying a new trial because the appellant failed to provide a sufficient record to demonstrate error regarding the statute of limitations, and the defendant failed to prove he had been in the state for the requisite period.

Issues

Whether the trial court's finding that the action was not barred by the statute of limitations was supported by the evidence.
Whether the appellant met the burden of showing error in the absence of the original complaint in the record.
Whether the time a defendant is absent from the state is excluded from the period of the statute of limitations under section 351 of the Code of Civil Procedure.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Again, to obtain a reversal the appellant must show error. Here taking the record as it is, appellant has shown none.”

“I think the judgment and order should be affirmed, both on the ground that he has failed to furnish a proper record, and also on the ground that no error appears.”

Synopsis

Statute of Limitations—Findings—Record Upon Appeal.—Where a defendant pleads the statute of limitations as a bar to an action upon promissory notes, and the court finds that the cause of action is not barred by the statute, such finding will not be disturbed on appeal, where the original complaint is not in the record, nor anything to show when the suit was commenced.

Id.—Judgment-Roll—Original Complaint Superseded by Amendment —Date of Commencement of Suit.—The appellant must show error, and to assail a finding that the action was not barred by the statute of limitations should bring up the original complaint as part of the judgment-roll, although superseded by an amended pleading, in order to show the date of the commencement of the action; and where he does not do so the judgment should be affirmed, for failure to furnish a proper record, and on the ground that no error appears.

Id.—Nonresidence—Absence From State.—Where the note sued upon was in express terms payable out of the state, and both of the payors were nonresidents of the state when the cause of action accrued, the statute only commences to run in their favor when they came to this state, and if afterward they left the state, the time when they were so absent would not be a part of the time in which the suit must be commenced.

Id.—Pleading—Departure From State—Waiver of Objection.—Where the complaint substantially averred that the defendant was a nonresident of the state, and had not been in the state for two years when the action was commenced, and there was no objection to evidence offered at the trial to prove that he came to the state after the cause of action accrued, and thereafter again departed from it, the defendant cannot be injured by the failure of the complaint specifically to allege a departure from the state after the cause of action accrued.

Temple, C.— This action is based upon two promissory notes dated upon the same day and alike in every respect, except that one is made payable six months after date and the other twelve months after date. The following is a copy of one of them.

“$500. Windsor, Ont., March 5, 1884.

“ Six months after date, for value received, we promise to pay to the order of Duncan Dougall, at the Canadian Bank of Commerce here, the sum of five hundred dollars. “ George Campbell,

“ A. B. Schulenberg.”

It is averred in the complaint that at the time of the execution of the note and at the time when it became due and payable both defendants were nonresidents of the state of California, and so continued until within a period of less than two years before the commencement of the action.

Only Schulenberg was served with summons. He answered and with other defenses pleaded the statute of limitations, to wit: That the cause of action was barred by the first subdivision of section 339 of the Code of Civil Procedure.

The cause was tried by the court without a jury, and the fifth finding of fact is that the cause of action “was not at the commencement of this action, and is not now, barred by the provisions of subdivision 1 of section 339 of the Code of Civil Procedure of the state of California, or by any other statute of said state.”

Judgment was thereupon entered for the plaintiff, and the defendant made a motion for a new trial upon the ground of the insufficiency of the evidence to justify the decision, and specified that the evidence was insufficient [157]to justify the finding that the two promissory notes sued on were not barred at the time of the commencement of the action by the provisions of subdivision 1 of section 339 of the Code of Civil Procedure.

The court declined to award a new trial, and defendant appeals both from the order and from the judgment.

The motion for a new trial was made upon the minutes of the court, and the statement of the case was subsequently settled.

The complaint had been amended, and the original complaint is not in the record, nor is there anything showing when the suit was commenced. The amended complaint was filed September 2, 1890.

Dougall v. Schulenberg

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief