Wise v. Williams

SEARLS, C. Appeal by ■ plaintiffs from a judgment in favor of defendants and from an order denying plaintiffs’ motion for a new trial. This is the third appeal in this cause. To the first complaint a demurrer was filed, and sustained by the court, and judgment entered for defendants. On appeal the judgment was reversed (72 Cal. 544, 14 Pac. 204), and the cause remanded for trial. On November 17, 1887, the cause was tried, and judgment rendered in favor of the defendants. An appeal was taken from that judgment, and from an order denying a motion for a new trial. The judgment and order were reversed (88 Cal. 30, 25 Pac. 1064), and the cause sent back for a new,trial. On the first appeal it was held by this court that as the complaint showed the demand to have been presented to the administratrix in due time, and to have been allowed by her and approved by the judge in due time, it was not barred by the statute of limitations. Upon the second appeal it was held, among other things, that the presentation and allowance of the claim were in due time, upon the ground that due notice to creditors had not been given prior to such presentation. The facts material to the present appeal are as follows: On the second day of May, 1877, John Connell made to the plaintiffs, copartners under the firm name of [199]Christy & Wise, his promissory note for $3,000, payable one day after date, with interest at one and one-half per cent per month, payable quarterly, and if not so paid to be added to the principal and bear like interest, etc. Thereafter, and under date of May 12, 1877, said John Connell and Sarah Connell, his wife, to secure the payment of said promissory note, executed to plaintiffs their mortgage upon certain lands situate and being in the counties of Merced and Stanislaus. The mortgage was duly acknowledged by the wife May 14, 1877, and duly recorded May 18, 1877, in Merced county, and on May 22,1877, in the county of Stanislaus. Thereafter, and on the twenty-fourth day of October, 1877, John Connell and Sarah, his wife, recorded their declaration of homestead in the county of Merced, upon the property covered by the mortgage. Thereafter John Connell died intestate, and on the nineteenth day of July, 1880, Sarah Connell, his widow, was duly appointed administratrix of his estate, and such proceedings were thereafter had that the homestead was by the court set apart to said Sarah Connell, as the surviving widow of 'John Connell, and released from administration. According to the complaint, which is denied by the answer, the claim of plaintiffs upon said promissory note and mortgage for $2,813.69 was duly presented to the administratrix December 21, 1880, allowed .by her, approved by the judge of the superior court, and duly filed on said last-mentioned date. Sarah Connell died intestate February 17, 1882, and defendant John Hallinan was duly appointed administrator of her estate. In April, 1883, defendant J. E. P. Williams was appointed administrator of the estate of John Connell. This action was commenced in August, 1883, and all claim against the estate of John Connell, except upon the mortgaged premises, was expressly waived. Defendant John Hallinan, as administrator of the estate of Sarah Connell, and as guardian of John B. Connell, minor son of John and Sarah Connell, deceased, answered. Williams, the administrator of John Connell, did not, so far as appears, answer the complaint. The cause was tried by the court without a jury, and written findings filed. Several of these findings are attacked as being unsupported by and as contrary to the evidence. Two or three only of these findings need be examined.