Frost v. Harford — 40 Cal. 165

Majority

p. 165

No. 2,262.

S. L. FROST, and MARGARET F. FROST (his wife), Respondents, v. FREDERICK HARFORD, (Administrator of the Estate of William Harford, deceased), Appellant.

Headnote

Pleading. — Complaint.—Joindee of Husband and Wipe. — A complaint drawn in the name of a husband and wife to recover on a note given to the female plaintiff, if it contain no averment that the plaintiffs were husband and wife at the time the note was given, is not bad on demurrer on the ground of a misjoinder of parties plaintiff.

Appeal. — Conflicting Evidence. — The finding in the Court below, where the evidence is conflicting, will not be disturbed on-appeal.

Appeal from tbe District Court of tbe Second District, Butte County.

Tbis action was brought in tbe name of S. L. Frost and Margaret F. Frost, bis wife, against defendant, administrator of tbe estate of William Harford, deceased, to recover a sum of money due- on a note executed and delivered to said Margaret F. Frost, by said Wm. Harford during bis lifetime. Defendant demurred to tbe complaint on tbe ground of misjoinder of parties plaintiff in tbe action. Tbe demurrer was overruled.

Tbe cause was tried by tbe Court, and judgment rendered in favor of plaintiffs. Defendant moved for a new trial, wbicb was denied,' and from tbe order denying tbe motion for a new trial and from tbe judgment, tbis appeal is taken.

Tbe other facts are stated in tbe opinion-

Jo Hamilton, Attorney-General, for Appellant.

Henry Starr, for Respondent.

delivered tbe opinion of tbe Court, Temple, J., Cbookett, J., and Rhodes, C. J., concurring:

There was upon tbe face of tbe complaint no misjoinder of parties plaintiff. It did not appear by any averment in tbe complaint that tbe plaintiffs were husband and wife at tbe time tbe note was given to tbe female plaintiff. Tbe demurrer was, therefore, properly overruled.

p. 166

Tbe finding of tbe Court below is, tbat tbe defences set up in tbe answer (tbat tbe note in suit was not made by tbe deceased, William Harford; tbat there was no consideration etc.,) are not true in point of fact, and as tbe evidence is conflicting upon all tbe points, tbe finding'will not be disturbed bere.

Tbe defence set up in tbe answer, to tbe effect tbat tbe plaintiff, Margaret, is not tbe legal owner and bolder of tbis note, wbicb runs to ber upon its face, is frivolous; and tbe other defence, tbat tbe note is not ber separate property, is tbe statement of a mere conclusion of law; and each of these pretended defences would doubtless have been stricken out in tbe Court below on motion.

■ Tbe judgment and order are affirmed.

Sprague, J., expressed no opinion.