Petersen v. Taylor

California Supreme Court Nov 10, 1893 No. No. 15,116Published

Before: Paterson

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Holding. The court held that the judgment must be affirmed because the plaintiff failed to file an affidavit denying the genuineness and due execution of the written release pleaded in the answer, and failed to specify the insufficiency of the evidence regarding the date of that release.

Issues

Whether the failure to file an affidavit denying the genuineness and due execution of a written instrument pleaded in an answer constitutes an admission of that instrument.
Whether a party may raise the insufficiency of evidence for the first time on appeal without having specified the particulars of such insufficiency in the trial court.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The genuineness and due execution of the instrument were therefore admitted, and it must be taken to be what it appears to be on its face”

“where a decision is attacked on the ground of the insufficiency of the evidence, the particulars in which the evidence is claimed to be insufficient must be stated. The objection cannot be raised for the first time in this court.”

Synopsis

Pleading—Failure to Deny Execution of Writing.—In an action for money had and received, the complaint alleged that defendant had on July -2, 1884, executed a written instrument certifying that he held $655 until certain disputes should be settled between two named claimants of the fund, and that both of the claimants had three years later assigned the certificate to plaintiS. The answer alleged that the dispute was settled on July 8, 1884, six days after the date of the certificate, and that both the claimants had on that day executed to defendant a written release of all their rights to the money, a copy of which was set out in the answer. Held, that plaintiff’s failure to deny the execution of the release by affidavit filed with the clerk of court, as required by Code of Civil Procedure, section 448, admitted the genuineness and due execution of the release, and it must be taken to be what it appears to be on its face.1

Appeal.—Where Findings are Waived, Every Presumption in support of the judgment must be indulged, except such as are cut off by the specifications of error; and though there is nothing in the testimony, all of which is certified to be in the record on appeal, showing the date of the execution of a written instrument, the judgment cannot be attacked on appeal for the insufficiency of the evidence in this respect, where this particular ground of insufficiency was not called to the attention of the trial court in the specifications.

PATERSON, J. This is an action to recover the sum of $780 claimed to be due plaintiff on two causes of action; the first is for $125 alleged to have been received by the defendant from one Calvert for the use and benefit of plaintiff, and the [337]other is for $655, which it is alleged the defendant holds for plaintiff as assignee of B. & B. Bonnett, under a certificate of which the following is a copy:

“This is to certify that I have the sum of $655.00 collected from the city and county of San Francisco in the suits of B. Bonnett and C. H. Parker vs. The City and County of San Francisco, claimed by Blie Bonnett, but attached in the suits of Petersen vs. B. Bonnett as the money of B. Bonnett, to abide settlement or suit against me to determine the ownership of said sum.

“July 2, 1884.

“JOS. W. TAYLOR.”

Findings were waived, judgment was entered in favor of defendant, and plaintiff has appealed.

As to the first cause of action, it is sufficient to say there is a substantial conflict in the evidence and the judgment of the court thereon must stand.

The plaintiff alleged that after defendant collected from the city and county of San Francisco the $655 referred to in the last cause of action stated, and assigned and delivered to Blie Bonnett, for the benefit of all concerned, the certificate above mentioned, all disputes about the ownership of the money were settled, and the interests therein of both Blie and B. were sold and transferred to plaintiff; that thereafter, to wit, on December 1, 1887, plaintiff notified defendant of the assignment to him, and demanded payment, which demand was refused. In his answer, defendant denied plaintiff’s ownership of the $655, or any part thereof, but admitted that he signed and delivered the instrument set forth in the complaint. He alleged that all disputes were settled, and the ownership of the property determined, on July 8, 1884, and a written release given, of which the following is a copy:

“We have this day settled all of our affairs, and the judgments in the actions of B. Bonnett vs. The City and County of San Francisco and C. H. Parker vs. The City and County of San Francisco belong to Jos. W. Taylor.

“[Signed] B. BONNETT.

Petersen v. Taylor

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