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Santos v. Silva

1 Cal. App. 616 Court Third Appellate District. Decision date 1905-09-21 Docket No. 46 English

Delivered by McLAUGHLIN, J.

Contents

Majority

p. 616
[No. 46.
Third Appellate District.
September 21, 1905.]
FRANK J. SANTOS, Respondent, v. A. J. SILVA, Appellant.

Headnote

Appeal prom Judgment—Sufficiency of Findings—Statute of-Limitations.—Upon an appeal from the judgment, where the-findings show the date when the cause of action accrued, from which it. appears that it is not barred by the statute of limitations, the-failure of the court to make an express finding upon a plea of the statute of limitations does not render the findings insufficient to support the judgment for the plaintiff.
Id.—Omission to Find upon Disputed Item—Remission by Respondent—Modification of Judgment.—Where the respondent confessed' error in the omission to find upon a disputed item, as to which respondent has filed a written waiver and release of the judgment and interest thereon, the judgment will be modified accordingly,, and affirmed as so modified.
APPEAL from a judgment of the Superior Court of Sacramento County. Peter J. Shields, Judge.
The facts are stated in the opinion of the court.
Hopkins & Hinsdale, for Appellant.
J. Frank Brown, for Respondent.

This is an appeal from a judgment resting on the judgment-roll alone. The only question presented is the sufficiency of the findings to support the judgment. The court made no express finding on the statute of limitations, pleaded as a defense to the first cause of action set forth in the complaint, and such failure is assigned as error. The findings, however, clearly show the date when this cause of action accrued, and from this it is apparent that the cause of action was not barred by the statute. This was. sufficient. (Ready v. McDonald, 128 Cal. 664 , [ 79 Am. St. Rep. 76 , 61 Pac. 272 ]; Paine v. San Bernardino, 143 Cal. 656 ,. [ 77 Pac. 659 ] ; Krasky v. Wollpert, 134 Cal. 338 , [ 66 Pac. 309 ] ; Warren v. Hopkins, 110 Cal. 512 , [ 42 Pac. 986 ]; Breeze v. Brooks, 97 Cal. 77 , [ 31 Pac. 742 ] ; Baum v. Roper, 145 Cal. 116 , [ 78 Pac. 466 ]; Eva v. Symans, 145 Cal. 202 , [ 78 Pac. 648 ].)

p. 617
The court omitted to find touching a disputed item of $154.20, and the respondent, upon the argument, confessed error in this regard, and filed a written waiver and release of the judgment to the extent of this sum and the interest thereon, amounting to $26.03, and asked that the judgment, be modified accordingly and as so modified that the judgment, be affirmed. This course would render the error utterly harmless to appellant.

The judgment is therefore modified by striking out' said items, and by reducing the total amount thereof to the sum. of $790.73. As so modified the judgment is affirmed.

Chipman, P. J., and Buckles, J., concurred.

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