Vanderslice v. Matthews

Citations

• 79 Cal. 273
• 21 P. 748
• 1889 Cal. LEXIS 718

Syllabus

<p>Appeal — Review op Errors — Set-off.—Upon appeal by a defendant from a judgment for costs in his favor, upon the allowance of a set-off against plaintiff’s claim, no question as to the correctness of the judgment against the plaintiff can be considered. If the appeal is upon the judgment roll, and the findings support the set-off, defendant can have no further judgment. dse — Set-off of Debt Secured.—In an action for the value of articles pledged, which were not returned upon demand and tender of the amount due, the indebtedness secured by the pledge is properly set off against the value of the articles.</p> <p>Id.—Action for Return or Value—Estates of Deceased Persons— Amended Complaint — Statute of Limitations. — When an action is brought against an administrator for the return of articles pledged to the decedent or for their value, and the complaint is amended by striking out the prayer for their return, but alleging the same facts as alleged in the original complaint as the foundation of the action, there is no change in the identity of the cause of action, and the statute of limitations as to actions against the estates of deceased persons runs only to the filing of the original complaint.</p> <p>Id.—Identification of Articles Pledged—Finding.—A finding that articles were pledged which correspond in description to the articles described in the complaint, and alleged to have been pledged, is a sufficient identification of the articles, without averring in the finding that they were the same articles described in the complaint, there being nothing in the record to show that the finding could have related to any other articles.</p> <p>Id.—Loss of Pledged Articles — Pleading — Finding in Absence of Testimony. — When the answer in an action for the value of pledged property not returned upon demand and tender of the amount due pleads as new matter that the articles pledged were lost or stolen from the pledgee without fault or negligence, and there is no testimony