Royon v. Guillée — 62 Cal. 536

Majority

p. 536

[No. 7,481

Department Two.]

May 14, 1881.

EDWARD ROYON et al. v. NICHOLAS GUILLÉE et al.

Headnote

Cboss-comelaint—Findings.—In an action by plaintiffs for money lent defendants jointly, the defendants, by way of cross-complaint, alleged that one of the plaintiffs obtained by undue influence from one of the defendants an instrument in writing, for the payment of certain moneys, which the defendants asked to have adjudged void; but it did not appear from the complaint that the plaintiffs sought to recover upon the instrument referred to in the cross-complaint, nor was there anything in the record to show that the instrument was introduced in evidence.

Held: It does not appear that the allegations of the cross-complaint with respect to said instrument were at all relevant to the case, and therefore no answer was required, and there being no issue upon it; no findings were necessary.

Appeal from a judgment for plaintiffs in the Superior Court of the City and County of San Francisco. Wheeler, J.

Sidney V. Smith & Son, for Appellant's,

It. M. Swain, for Respondent.

This action was brought to recover money alleged to have been lent by the plaintiffs jointly to the defendants jointly. The defendants denied all the material allegations of the complaint, and by way of cross-complaint alleged that one of the defendants lent to one of the plaintiffs sums of money; and that one of the plaintiffs obtained by undue influence from one of the defendants an instrument in writing for the payment of certain moneys, which the defendants asked to have adjudged void, and to have plaintiffs enjoined from seeking to enforce it. The findings are full upon all the issues raised

p. 537

by the complaint and answer, but there are no findings as to the allegations of the cross-complaint, which was not answered by the plaintiffs.

The only question is, whether the allegations of the cross-complaint are sufficient to entitle defendants to any relief in this action. The transaction to which it refers is alleged to have been between one of the plaintiffs and one of the defendants only; and it does not appear from the complaint that the plaintiffs sought to recover, upon the instrument referred to in the cross-complaint. We have nothing but the judgment roll before us, and there is nothing to show that said instrument was introduced in evidence. It is therefore impossible for us to see that the allegations of the cross-complaint, with respect to said instrument, were, at all relevant to the case, and therefore no answer to them was required; and there being no issue upon it, no findings were necessary.

Judgment affirmed.