Petersen v. Taylor

Citations

• 4 Cal. Unrep. 335
• 34 P. 724
• 1893 Cal. LEXIS 1137

Syllabus

<p>Pleading—Failure to Deny Execution of Writing.—In an action for money had and received, the complaint alleged that defendant had on July -2, 1884, executed a written instrument certifying that he held $655 until certain disputes should be settled between two named claimants of the fund, and that both of the claimants had three years later assigned the certificate to plaintiS. The answer alleged that the dispute was settled on July 8, 1884, six days after the date of the certificate, and that both the claimants had on that day executed to defendant a written release of all their rights to the money, a copy of which was set out in the answer. Held, that plaintiff’s failure to deny the execution of the release by affidavit filed with the clerk of court, as required by Code of Civil Procedure, section 448, admitted the genuineness and due execution of the release, and it must be taken to be what it appears to be on its face.1</p> <p>Appeal.—Where Findings are Waived, Every Presumption in support of the judgment must be indulged, except such as are cut off by the specifications of error; and though there is nothing in the testimony, all of which is certified to be in the record on appeal, showing the date of the execution of a written instrument, the judgment cannot be attacked on appeal for the insufficiency of the evidence in this respect, where this particular ground of insufficiency was not called to the attention of the trial court in the specifications.</p>