Lang v. Specht

62 Cal. 145, 1882 Cal. LEXIS 710

• Court: California Supreme Court
• Decided: November 21, 1882
• Docket: No. 7,471
• Status: Published

Opinion

The Court:

Under rule ten of this Court it has been the uniform practice, where the written transcript has been transmitted to the Clerk within the forty days fixed by rule two, or any extension of such period, to require only the service upon respondent mentioned in rule ten, that is, service of copy of the transcript after the same has been printed under the direction of the clerk. The rules do not require, in such case, service of the transcript before it is printed.

The note sued on was executed in the State of ¡Nevada, and there is no pretense that defendant Specht openly visited California more than two years before the commencement of the action. The Court below properly found against defendant upon the plea of the Statute of Limitations.

The complaint alleges the execution of the promissory note by defendants Specht and Kruttschnitt as joint makers. It contains no statement of facts which would suggest that, as between themselves, Kruttschnitt was surety only for Specht, and that as such surety had taken up the note and assigned his right of action against his principal. The complaint alleges that the payees indorsed to plaintiff’s indorsers. The answer of Specht avers payment of the note by Kruttschnitt. The Court found that Kruttschnitt signed the note as surety for Specht.

There is no finding upon the issue of payment, nor any finding relating to the matter of payment, except the following: “I further find that the payment made by Kruttschnitt & Co., was for the benefit of the defendant ” (the only defendant served was Specht); “ and that the payment was made by the firm of Kruttschnitt & Co., in liquidation of the debt, and that having paid the same as surety, his assignee is entitled to recover against his co-obligor, Margarette Specht, and that the assignment to John F. Lang, the plaintiff, was made in good faith and for a valuable consideration, and that he is entitled to judgment for one thousand two hundred and fifty-three dollars.”

From the amount of the judgment it would appear that it was intended to allow for the amount paid to the payees or holders of the note by some party or parties with legal interest thereon. But, as we have seen, the action is brought on the note. If we read the finding in connection with the evidence to which it seems to refer, payment is found. But this can not properly be done. Separated from the reference to “the payment made by Kruttschnitt & Co.”—a payment not previously mentioned in the findings—and the proposition of law inserted into the finding, that Kruttschnitt & Co., “ having paid the same in liquidation of the debt, his assignee is entitled to recover,” there is certainly no direct finding that the note was not paid by Kruttschnitt, who was joint maker as to the payees. In brief, the findings, so far as they go, are strongly suggestive of a payment of the note by Kruttschnitt; they can not possibly be construed as determining that Kruttschnitt did not pay the note. The Court, therefore, failed to find upon the issue of payment.

The findings—if they could be construed to be that Kruttschnitt, as surety, paid the note for the benefit of defendant Specht, and that he thereupon transferred his right to recover of defendant Specht to plaintiff—would be utterly unsupported by the averments of the complaint and entirely outside of the pleadings.

Judgment and order reversed and cause remanded for a new trial.