Gardiner v. Schmaelzle

47 Cal. 588

• Court: California Supreme Court
• Decided: July 1, 1874
• Docket: No. 2,570
• Status: Published

Opinion

By the Court, Wallace, C. J.:

When the record of the letter of attorney from Sutter to Peachy was offered in evidence, authorizing, or purporting to authorize, the latter to make sale of the lot unsold in the squares lying between N and 0 streets, no specific objection was made that the plaintiff had not shown that the lot No. 4, in controversy, and which lies in one of the squares between those streets was unsold ; even if that objection had been taken in form, it would not have availed the defendant at that stage of the proceedings, inasmuch as in any view the letter of attorney was admissible, without such proof being first made. The objection as made—that the letter of attorney was “ irrelevant and incompetent”— would not sufficiently present the point. Nor was ■ this objection presented on the motion for a nonsuit. Had it been relied upon even then, and properly pointed out, the plaintiff would have been afforded an opportunity to supply the necessary proof upon the point at the trial..

2. The statute of limitations relied upon, even had the possession of the defendant been adverse in its character, will not avail the defendant (Gardiner v. Miller, ante, 570); and there is nothing in the other points.

Judgment and order affirmed.

Neither Mr. Justice Rhodes, nor Mr. Justice Niles, expressed an opinion.