Ackley v. Fishbeck

CHIPMAN, C. Action for services as physician rendered by plaintiff’s assignor, Dr. Daywalt, to the wife of defendant, at the city and county of San Francisco, from February 1, 1892, to April 1, 1894, when the patient died. Plaintiff’s counsel [410]in his brief states the case as follows: “The wife’s sickness was of a malignant character; and the physician’s attendance and treatment was part of the time daily, and part of the time weekly or monthly, according as the disease advanced, or according to the wife’s presence in or absence from San Francisco. The cause was tried by the court without a jury—the contention being, on the part of plaintiff, that the sickness treated was continuous and the same sickness throughout the whole time, and that the statute of outlawry only began to run from the termination of the service; that the last item in the account drew after it, or took in all the preceding items because a part of the same transaction.” Defendant denied the indebtedness and pleaded the statute of limitation, and his contention was that each day’s service was a separate cause of action, and the statute ran from each day, as the service was rendered. The court gave judgment for five days’ attendance, or only those attendances that were within the two years before the complaint was filed. The appeal is from the judgment and from an order denying motion for new trial, and comes here on a statement of the case.

1. The statement contains no assignment or specifications of errors. There- is appended to the statement, but forming no part of it, what is designated as “assignment of errors,” but it is not authenticated as part of the record and is excepted from the stipulation certifying to the contents of the transcript. There is nothing to show that it was considered on the motion for a new trial. The appeal from the order is here, therefore, without any specifications of errors, and cannot be considered. (Code Civ. Proc., sec. 659, subd. 3; Sprigg v. Barber, 122 Cal. 573, and cases there cited.)

2. The appeal from the judgment alone can be considered, and we are to determine only whether the findings support the judgment. The court found that plaintiff’s assignor attended defendant’s wife at different times “without any express agreement with her or with defendant to attend her for any stipulated length of time, or any stipulated sum of money”; that Dr. Daywalt was “free to render his account for services up to any time and collect for the same”; that he charged three dollars for each visit to the house of defendant and two dollars