Mellus v. Mellus

FOOTE, C. Action on four promissory notes. Appeal from the judgment for plaintiff, and the order denying defendant a new trial. The complaint stated a cause of action, and the demurrer thereto was properly overruled. From the findings of the court it appeared that recovery on the first note was, as claimed in the answer, barred by limitation under section 337, Code of Civil Procedure. The recitals of facts in those findings negative the existence of all other defenses set up in the answer; and the material issues raised by the pleadings were considered and passed upon. The evidence, although in some respects conflicting, sustains the findings, and they support the judgment. The court reserved its ruling upon an objection made by the plaintiff to the admission in evidence of a complaint filed in another action by E. A. Mellus, assignee of Adelida Alexander, against Lalla Mellus, and which the defendant claims has never been ruled upon. A ruling should have been made upon that objection, but the defendant here suffered no injury. That complaint was incompetent as evidence in this action. Its allegations were not binding on the plaintiff here. It was filed in an action which was dismissed before that at bar was brought. The parties to the two actions were not identical.

The fifth point made by the defendants for the first time in this court should not be considered.

The record shows no error and the judgment and order should be affirmed.

We concur: Searls, C.; Belcher, C. C.

By the COURT.—For the reasons given in the foregoing opinion the judgment and order are affirmed.