Drake v. Foster

52 Cal. 225

• Court: California Supreme Court
• Decided: July 1, 1877
• Docket: No. 5344
• Status: Published

Opinion

The offered testimony was to establish a collateral fact which was in no way connected with the issues.

The defendant must prove by the record that he offered to show at the trial the materiality of the evidence objected to.

The record is silent as to this, and since error is not presumed, we must conclude that no such tender was made to the Court. (Greenl. Ev. vol. 1, .sec. 51a, 52, and 448.)

The authority cited by appellant (50 Cal. 176) is not in point.

The evidence offered in that case was, of previous fires set by the same engines, which was in point to show an improper construction of the engines and the defendant’s knowledge of the defect.

By the Court, Crockett, J.:

The motion for a nonsuit was properly denied. There was evidence tending to prove that the building was set on fire through the negligence of the defendant’s testator.

The evidence offered by the defendant tending to prove that two other hotels in the same town were subsequently set on fire by incendiaries on the same day of the week and at about the same hour of the night was properly excluded. It was wholly foreign to any issue in the cause.

Nor did the Court err in refusing to set aside the verdict on the ground that it was not justified by the evidence. There was sufficient evidence to support the verdict.

The point made by the appellant that the claim was not presented to the executor for allowance as required by sec. 1502 of the Code of Civil Procedure comes too late when made for the first time in this Court. It should have been made in the Court below. (Bank of Stockton v. Howland, 42 Cal. 129.)

But the judgment must be modified. As entered, it runs against the defendant “ as executor of the last will of Daniel Horrom, deceased ”; whereas, sec. 1504 of the Code of Civil Procedure provides that in such cases “ the judgment must be that the executor or administrator pay in due course of administration the amount ascertained to be due.”

It is therefore ordered that the judgment be and the same is hereby modified by adding thereto the words, “payable in due course of administration,” and in other respects the judgment and order arc affirmed, but without costs to the appellant.

Eemittitur ^forthwith.