Davis v. Lamb

California Supreme Court Dec 21, 1893 No. No. 15,293Published

Before: Vanclief

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Holding. The court held that the judgment was erroneous because it was entered against the administrator personally rather than in his representative capacity, was immediately enforceable, and exceeded the correct principal and interest amount. The court affirmed the order denying a new trial, finding no error in the trial court's evidentiary rulings or discretionary decisions.

Issues

Whether the judgment against the administrator was erroneous in form, enforceability, and amount.
Whether the trial court erred in its evidentiary findings regarding the promissory note.
Whether the trial court abused its discretion in refusing to reopen the case for additional evidence.

Disposition. remanded with instructions to modify

Quotations verified verbatim against the opinion

“Unquestionably, the judgment is erroneous in the following respects: First, it is against George W. Lamb personally, whereas it should have been against him as administrator of the estate of William H. Lamb, deceased”

“the cause is remanded, with instructions to the court below to modify its judgment as above indicated, and, as so modified, the judgment and order are affirmed.”

Synopsis

Administrator.—A Judgment in an Action Against an Administrator that is entered against him personally will be corrected on appeal therefrom, as the error is one that is apparent on the judgment-roll.

Administrator.—A Judgment in an Action Against an Administrator that is made immediately enforceable will be corrected on appeal therefrom so as to make it payable “in due course of administration,” as required by Code of Civil Procedure, .section 1504, as the error is one that is apparent on the judgment-roll.

Appeal.—A Judgment in an Action on a Note for a Sum Larger than the principal and interest due on the note will be corrected on appeal therefrom, as the error is one that is apparent on the judgment-roll.

Appeal.—The Denial of a Motion for a New Trial on the Ground of insufficiency of evidence will not be reviewed where the bill of exceptions on which the motion was made contains no exception on that ground, and no specification of any particular in which it is claimed the evidence was insufficient.

Administrator.—In an Action, Tried Before the Court, on a note guaranteed by defendant’s intestate, error cannot be predicated on the consideration of the note as evidence, on the ground that it had been altered after intestate’s death, where no objection was offered to its admission on such ground, and the court found the note in the form in which it was made.

Administrator.—In an Action, Tried Before the Court against an administrator on a note guaranteed by his intestate, the court’s refusal to open the case after taking it under advisement, to permit the administrator to show that he demanded the production of the original note when the claim was presented to him, is a proper exercise of discretion, when it does not appear that the claim was rejected because of the nonproduction of the original.

VANCLIEF, C. Action on a promissory note made by the defendant Larabee to A. Davis & Son, and indorsed by the decedent as guarantor. The plaintiff is a member of the firm of A. Davis & Son, and sues as assignee of the note. The defendant Larabee was not served with summons. The court found in favor of plaintiff on all the issues of fact, and, among other things, found the note to have been made and indorsed in the following form:

“$400.00. San Francisco, Oct. 19, 1889.

“Two months after date - promise to pay to the order of A. Davis & Son four hundred dollars, for value received, with interest at - per cent per - from - until paid, both principal and interest payable only in United States gold coin; and in case suit is instituted to collect this note, or any portion thereof, —- promise to pay such additional sum as the court may adjudge reasonable as attorney’s fees in said suit.

“C. E. LARABEE.”

As conclusions of law the court found as follows:

“(1) That by the terms of said promissory note the defendant Larabee promised to pay to the order of said A. Davis & Son, two months after its date, the sum of four hundred dollars, with interest thereon from its date at the rate of seven per cent per annum, and, in case suit should he instituted to collect said note or any part thereof, such additional sum as the court should judge reasonable as attorney’s fees in such suit. (2) That the said note was a non-negotiable instrument, and the said William H. Lamb, by such indorsement, became a guarantor of such note, and guaranteed the payment by said Larabee of the amount of said note. (3) That by reason thereof the plaintiff is entitled to judgment against the de[767]fendant George W. Lamb, as administrator of the estate of William H. Lamb, deceased, for the sum of four hundred dollars, with interest thereon at the rate of seven per cent per annum from the 19th day of October, 1889, and costs of suit, such judgment to be payable in the course of administration of the estate of the said William H. Lamb, deceased; and it is ordered that judgment be entered accordingly.

“Done in open court this 14th day of May, 1892,

“F. W. HENSHAW,

“Judge.”

Thereafter, on June 13, 1892, the clerk entered judgment on the findings as follows:

Davis v. Lamb

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