Herrlich v. McDonald

Searls, C. This action was commenced June 20, 1891, and is based upon a judgment averred to have been duly given and made by the superior court in and for the city and county of San Francisco, in favor of Julie Herrlich and against Maggie McDonald, the defendant herein, on the twenty-fourth day of June, 1886.

It is further averred that an appeal was taken by said defendant from said original judgment to the supreme court of the state of California, where the same was, on the seventh day of September, 1889, affirmed with fifteen per cent damagés.

The complaint further avers that the original action was brought to recover for money had and received by defendant from Julie Herrlich, the plaintiff therein, in a fiduciary capacity, etc., and that plaintiff John F. [552]Hanlon is the assignee of an interest in said original judgment.

The answer of defendant, among other things, denies that the original judgment was entered after November 28,1881, or that the action was brought to recover money had or received by the defendant in a fiduciary capacity, pleads the statute of limitations, and a discharge from said judgment under the insolvent law of the state of California by a decree duly entered on the twenty-ninth day of January, 1883, etc.

The cause was tried by the court without a jury, written findings filed, and a judgment rendered in favor of plaintiffs, from which judgment and from an order denying her motion for a new trial defendant appeals.

Upon the plea of the statute of limitations interposed by defendant the court below found in favor of plaintiffs. This plea involved the question as to the date of the entry of the judgment upon which the action was brought.

The judgment-roll was introduced in evidence, and showed it to have been entered and recorded in the judgment book on the twenty-fourth dhy of June, 1886, on which last-mentioned day the judgment-roll was made up, filed, and certified by the clerk as required by sections 668 and 670 of the Code of Civil Procedure.

On behalf of defendant testimony was introduced showing that the findings of the court in the original cause were filed in the superior court November 28,1881, and that, pursuant to the conclusion of law therein contained that plaintiff was entitled to judgment, the clerk of the court on the same day made in his minute-book the following entry: “This cause having been submitted to the court for consideration and decision, and due consideration being had, it is ordered that judgment be, and the same is, hereby entered for plaintiff for four thousand seven hundred and five dollars and costs, without interest.”