Opinion
Appeal from the District Court of the Second District, Butte County.
This action was brought in the name of S. L. Frost and Margaret F. Frost, his wife, against defendant, administrator of the estate of William Harford, deceased, to recover a sum of money due on a note executed and delivered to said Margaret F. Frost, by said Wm. Harford during his lifetime. Defendant demurred to the complaint on the ground of misjoinder of parties plaintiff in the action. The demurrer was overruled.
The cause was tried by the Court, and judgment rendered in favor of plaintiffs. Defendant moved for a new trial, which was denied, and from the order denying the motion for a new trial and from the judgment, this appeal is taken.
COUNSEL:
Jo Hamilton, Attorney-General, for Appellant.
Henry Starr, for Respondent.
JUDGES: Wallace, J., delivered the opinion of the Court, Temple, J., Crockett, J., and Rhodes, C. J., concurring. Sprague, J., expressed no opinion.
OPINION
WALLACE, Judge
There was upon the face of the complaint no misjoinder of parties plaintiff. It did not appear by any averment in the complaint that the plaintiffs were husband and wife at the time the note was given to the female plaintiff. The demurrer was, therefore, properly overruled. The finding of the Court below is, that the defences set up in the answer (that the note in suit was not made by the deceased, William Harford; that there was no consideration, etc.,) are not true in point of fact, and as the evidence is conflicting upon all the points, the finding will not be disturbed here.
The defence set up in the answer, to the effect that the plaintiff, Margaret, is not the legal owner and holder of this note, which runs to her upon its face, is frivolous; and the other defence, that the note is not her separate property, is the statement of a mere conclusion of law; and each of these pretended defences would doubtless have been stricken out in the Court below on motion.
The judgment and order are affirmed.