Lee v. Day

203 P. 1024, 55 Cal. App. 653, 1921 Cal. App. LEXIS 149

• Court: California Court of Appeal
• Decided: December 14, 1921
• Docket: Civ. No. 2360.
• Status: Published

Opinion

FINCH, P. J.

The only ground presented for reversal is that the findings “are insufficient to sustain the judgment.”

The complaint contains three allegations: 1. That the defendant had received a certain sum of money “to and for the use of the plaintiff.” 2. That plaintiff had made demand for the same. 3. That the defendant had not paid the money to the plaintiff. The answer denied the first allegation and, by failure to deny, admitted the others.

[1] The appellant quotes the finding attacked as follows: “That all the allegations set forth in plaintiff’s complaint are not true,” and argues that this is not a finding that “no one of the allegations of the complaint is true, but the finding is as to all collectively; that all are not true.” The respondent has failed to file a brief or argue the question raised .by the appeal. Appellant, however, has fallen into error in quoting the finding. The finding contained in the transcript is as follows: “That each and all the allegations set forth in plaintiff’s complaint are not true”; then follows the finding “that all the allegations contained in defendant’s answer are true.” In McLennan v. Wilcox, 126 Cal. 52 [58 Pac. 306], the finding claimed to be insufficient was as follows: “That each of the averments of the answer are not true.” The court held the finding to be sufficient. While the use of the word “untrue” would have been more appropriate than the words “not true,” the' criticism of the finding of which complaint is made is somewhat hypercritical, and under the authority of the case cited the finding must be held sufficient.

The judgment is affirmed.

Hart, J., and Burnett, J., concurred.