Morrice v. Fitch

WEYAND, J., pro tem. Plaintiff brought suit in Tuolumne County against C. S. Fitch for $1,289 upon an alleged account due plaintiff from defendants, for services rendered and money advanced at the special instance and request of defendants. This complaint was filed July 26, 1920. A demurrer by both defendants was filed July 26, 1923. M. Q. Fitch answered on June 11, 1926. Said answer denies all the allegations of the complaint. As a separate answer and defense to said complaint, defendant M. Q. Fitch alleged that C. S. Fitch died August 19, 1923, and that the personal representative of the deceased has not been made a party to the action, and that no claim has been presented to the personal representative of the deceased, for the claim of plaintiff, and that, therefore, there is a nonjoinder of parties defendant. For another defense M. Q. Fitch plead the bar of section 337 of the Code of Civil and also separately subdivisions 1, 2, and subdivision 3 thereof. For still another defense said defendant plead section 339 of the Code of Civil Procedure, and separately specified subdivisions 1 and 2 of said section.

The action was tried without a jury and on December 31, 1926, findings and judgment were filed and entered against the plaintiff. The plaintiff appeals to this court from said judgment. There are no findings upon the first separate defense, nor upon the defense of the statute of limitations. The findings of the trial court are upon the issue tendered by the denial of all the allegations of the complaint. No findings were made as to the other special defenses. Judgment was for the defendant M. Q. Fitch.

Appellant presents three points upon which he contends the judgment should be reversed: 1. That there was no finding as to the statute of limitations; 2. That the finding [12]that M. Q. Fitch is not indebted to plaintiff is not supported by the evidence; 3. That on the facts disclosed by the plaintiff is entitled to judgment.

We can see no reason for a reversal of this judgment because the trial judge did not find upon the statute of limitations pleaded. In view of the finding of the court that there was no indebtedness, it was unnecessary to find upon the issue tendered by a plea of these statutes.

The same reasoning applies to the first separate defense. The finding that there was no claim whatsoever against M. Q. Fitch rendered unnecessary a finding as to nonjoinder.

The second and third contentions of the appellant are, in substance, but one question, namely, was there due appellant from the defendant M. Q. Fitch?