Lee Sack Sam v. Gray
Before: Belcher, Fleet, Harrison, Haven, Haynes, Searls
Synopsis
Appeal from a judgment of the Superior Court of Fresno County.
The facts are stated in the opinion.
The evidence is insufficient to sustain the judgment, and is reviewable on this appeal. (Code Civ. Proc., secs. 187, 989; Hayne’s New Trial and Appeal, 44.) The finding that the evidence was insufficient to sustain the validity of the claim was in fact no finding at all, and was clearly insufficient as a finding upon the issues. (Campbell v. Buchman, 49 Cal. 867; Hayne’s New Trial and Appeal, 44, 227, 720; Plant v. Fleming, 20 Cal. 98; Thompson v. Patterson, 54 Cal. 546.)
The report of the referee forms no part of the judg- ■ ment-roll, and cannot be considered. (Harper v. Minor, 27 Cal. 109.) It was no part of the referee’s duty to report findings, and therefore it is unnecessary to examine objections thereto. (Connor v. Morris, 23 Cal. 451; Hihn v. Pech, SO Cal. 281.) It will be presumed that findings were waived. (Mulcahy v. Glazier, 51 Cal. 626; Smith v. Lawrence, 53 Cal. 34; Reynolds v. Brumagim, 54 Cal. 254.) It was necessary, therefore, that the appellant should show affirmatively in a bill of exceptions that the findings were not waived. (People v. Torres, 38 Cal. 142.) The finding that the claim should be rejected was a sufficient finding in the case, and conclusive of the only material issue. (Pralus v. Pacific G. & S. M. Co., 35 Cal. 30; Hihn v. Pech, 30 Cal. 285.)
Searls, C. This is an appeal from an order or judgment in probate, made by tbe superior court of tbe county of Fresno, and comes up on tbe judgment-roll, without any statement or bill of exceptions.
The following facts will sufficiently illustrate tbe proceedings had:
On the fourth day of April, 1892, Lee Sack Sam presented his claim against the estate of Man "Wo Chan, deceased, duly verified, for twenty-one thousand six hundred dollars, to William W. Gray, administrator of said estate, for allowance.
The claim is founded upon a promissory note, of which the following is a copy:
“$20,000. SaN FraNCisco, Dec. 29, 1889.
“Eight months after date (no grace) for value received in gold coin of the government of the United States, I promise to pay to Lee Sack Sam, or order, the sum of twenty thousand dollars, with interest from date, at the rate of one per cent per month until paid, both principal and interest payable alike in gold coin.
[signed] “Lee Sing.”
Which promissory note is indorsed as follows:
“For value received hereby waive protest, demand, and notice of nonpayment. Man Wo Chan.
“Man Wo Chan.”
No action was taken on said claim by the administrator of the estate of Man Wo Chan, deceased, until on or about January 16, 1893, when the administrator, being in doubt as to the correctness of the claim, entered into an agreement in writing with the claimant under section 1507 of the Code of Civil Procedure, to refer the matter in controversy to the superior court of Fresno county for decision, “or, in other words, that a reference may be had in said court.”
The agreement was approved by the court and duly filed in the office of the county clerk, and thereafter a minute of the order was entered, etc., as provided by section 1507 of the Code of Civil Procedure.
[246]The court, sitting as a referee, heard the case and made its report, wherein there is set out what purports to be the testimony taken, and found the facts and conclusions of law as follows:
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