Throop v. Weaver

MELVIN, J. Appeal by plaintiffs from the judgment. Plaintiffs sued in equity to cancel a certain note which they alleged in their complaint they executed and delivered to the defendant on or about the twenty-first day of April, 1915. They averred that the principal amount was $1,060, bearing interest at seven per cent per annum, and becoming due on or before July 1, 1916. They alleged that the note was in negotiable form and, upon information and belief, averred that at the time of beginning of the action it was still in the possession and under the control of defendant. They also averred that said note and interest had been paid in full by plaintiffs; that defendant refused to surrender possession thereof; and they prayed for judgment that the note be canceled and surrendered to them. Defendant answered, admitting the execution and delivery of the note, but denying that any part of it had been paid. Deféndant also set up by way of cross-complaint a claim against the plaintiffs for certain merchandise alleged to have been converted by them, and prayed judgment against the plaintiffs for six hundred dollars. Plaintiffs did not demur to the cross-complaint, but answered, putting in issue the allegations thereof, and the cause was thereupon tried. The court found that the promissory note described in paragraph 1 of the complaint, and not denied by the defendant, had not been paid in full or otherwise by the plaintiffs ' or any other person and that no part of the interest had been paid. Upon the cross-complaint judgment was given in favor of the cross-complainant for the sum of sixty-four dollars, with interest thereon at the legal rate, and the equitable relief demanded in plaintiffs’ bill was denied. [1] In the judgment the description of the note agrees in every particular with that given in the complaint except that the payees are described as defendant, W. 0. Weaver and Mary B. Weaver. Upon this supposed variance appellants argue that the promissory note described in the judgment is not the one referred to in any of the pleadings or in the findings of the court. This is an unworthy and frivolous con *337 tention. In the first place the complaint does not mention by name the payee or payees described in the note. Therefore, there is no necessary variance between the pleading and the judgment. Secondly, none of the testimony appears in the transcript, and it is elementary that this court must assume in favor of the regularity of the judgment that the note therein described is the one in regard to which the parties litigated. [2] Appellants also make the point that the cross-complaint does not state a cause of action, their criticism really being that the cause of action pleaded is not a proper matter for cross-complaint. Conceding this to be true, they cannot here raise the point as they joined issue upon said cross-complaint and went to trial without demurrer or objection. Appellants also assert that the findings are outside of the issues in this respect,"the while Mary B. Throop was not made a party to the cross-complaint, judgment thereon was entered a’gainst her.. This contention is correct, but the objection to the judgment may he obviated by adding the words, “except Mary B. Throop,” after the word “plaintiffs,” in the fourth line from the end of the said judgment, and by inserting the words, “against plaintiffs,” after the word “taxed,” in the second line from the end of said judgment. The trial court is, therefore, directed to amend the judgment so that the closing paragraph will be as follows: “It is further ordered, adjudged and decreed that the said plaintiffs take nothing from the defendant W. C. Weaver, and that the defendant W. C. Weaver have and recover of and from said plaintiffs, except Mary B. Throop, the sum of $68.73, together with said defendant’s costs of suit herein incurred and expended, hereby taxed against plaintiffs at the sum of $44.00. ’ ’ As so amended the judgment is affirmed with the costs of this appeal taxed against the plaintiffs Chas. B. Throop and Bichard A. Throop. Wilbur, J., and Lennon, J., concurred.