Lewis v. Adams

McKEE, J. Appeal from an order granting a new trial. It is axiomatic in law that on such an appeal the appellant mnst make it affirmatively appear that error or abuse of discretion has been committed in granting the order. Neither will be presumed. Every intendment is in favor of the order, and unless that is overcome by something in the record of the case upon which the order was made, or unless it has been [517]made upon some proposition which, considered in itself, is prejudicially erroneous, the order must he affirmed. There is nothing in the record to overcome the presumption in favor of the correctness of the order. On the contrary, the record makes the presumption conclusive. The suit was on a judgment. From the original complaint it appears that the plaintiff was duly appointed by the probate court of Bexar county, in the state of Texas, executrix of the will of Nat. Lewis, deceased; and, in that capacity, she recovered in the district court of said county and state, on the fifteenth day of March, 1877, a judgment for twelve thousand nine hundred and forty-two dollars, and costs against the defendant, P. T. Adams. On that alleged judgment the executrix brought suit in the superior court of Los Angeles county, in this state, against the said Adams, without first obtaining ancillary letters of administration. The suit was commenced on the 15th of February, 1882. On the 8th of July, 1884, more than five years after the date of the judgment, the plaintiff, by leave of the court, amended her complaint by inserting after the word “Adams,” in the title of the cause, the names of Joseph Collins, John H. Kennedy and James A. Dalyrample, and by striking out the word “defendant” wherever it occurs in the complaint and inserting instead thereof the word “defendants”; thus alleging a judgment against P. T. Adams, Joseph Collins, John H. Kennedy and James A. Dalyrample, jointly. Adams, by demurrer and answer, resisted recovery on the judgment, on the grounds of (1) incapacity of the plaintiff to sue; (2) nul tiel record; (3) bar of the statute of limitations.

On the trial, the judgment record, given in evidence against defendant’s exception, showed that the plaintiff, as executrix of the will of Nat. Lewis, deceased, on the 15th of March, 1877, in the district court of Bexar county, state of Texas, in an action against Adams, Collins & Co., on a partnership liability, recovered judgment for twelve thousand nine hundred and forty-two dollars, and costs, against P. T. Adams, Joseph Collins, James Dalyrample and John H. Kennedy. Adams then proved that he had continuously resided in the state of California since July, 1877, except during a period of about two weeks, when he was absent from the state. On this evidence the court found, “All the allegations of the