Cockrill v. Clyma

Citations

• 98 Cal. 123
• 32 P. 888
• 1893 Cal. LEXIS 871

Syllabus

<p>Parties—Action by Executrix—Substitution of Plaintiff as Individual — Consent—Presumption upon Appeal. — Where an executrix brought an action of trover in her representative capacity, and it appears from the findings in favor of defendants that both parties to the action admitted in open court at the trial that since the commencement of the action, and prior to the trial, a decree of distribution of the estate bad been made, and the cause of action had been duly assigned to the plaintiff in her own right, and that since the decree of distribution the plaintiff had continued the action in her own interest and right, upon which admission the defendant had asked that the action be continued in plaintiff’s name as an individual, and the court found, as conclusions of law, that the plaintiff should be substituted in her own name and right, and that defendant should recover costs against her individually, and entered an order and judgment accordingly, prefixing the order to the judgment, and the record upon appeal fails to show any objection by the plaintiff to the motion for substitution or exception to the order granting the substitution, it will be presumed upon appeal, in support of the order granting the substitution, that the plaintiff expressly consented thereto when the motion was made.</p> <p>Id.— Practice—Entry of Substitution upon Minutes—Order Prefixed to Judgment—Error not Appearing.—Although the correct practice is to enter an order of substitution of a party in the minutes as a distinct order made before judgment, yet the fact that such an order is prefixed to the judgment as a distinct order, and recorded in the judgment-book and made a part of the judgment-roll, is not inconsistent with its previous entry in the minutes of the court, and in such positionlt appears to have been made prior to the judgment» and does not affirmatively appear to have been erroneously made.</p> <p>Id.—Presumption in Favor of Order.—If an order of the trial court is warranted