Opinion
Department One
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
COUNSEL:
William R. Davis, William L. Hill, and Edward C. Robinson, for Appellant.
Clement, Osment & Clement, and T. M. Osment, for Respondents.
JUDGES: Temple, J. McFarland J., and Paterson, J., concurred.
OPINION
TEMPLE, Judge
Suit was brought by the plaintiffs, describing themselves as late partners, against A. L. Sherman alone, upon a judgment recovered in the state of Nevada against Sherman and three others.
This complaint was demurred to on various grounds, one of which was non-joinder of the other defendants in the Nevada judgment. The demurrer was sustained and the plaintiff amended, making all the judgment debtors parties, and omitting the designation of the plaintiffs as late partners. In other words, they sued simply as individuals, setting up, however, the same judgment as before. No other defendant was served. Sherman moved to have the amended complaint stricken from the files, on the ground that it was not an amendment, but an entirely different cause of action. The court denied the motion, and we think correctly. In one sense it was a different cause of action, but plainly the same judgment was attempted to be set up in each complaint, and the same relief demanded upon the same facts, which were only stated in a different legal aspect.
[13 P. 662] The action is not barred by the statute of limitations. True, no action can be maintained upon the judgment in Nevada. But the plaintiffs have resided in this state ever since the rendition of that judgment, and as they have been citizens of this state and have held the cause of action from the time it accrued, they come within the exception of section 361, Code of Civil Procedure. The defendants had been out of the state except for two or three weeks in each year until the commencement of the action.
After the commencement of this suit, one of the plaintiffs went into insolvency, and an assignee was appointed. It is claimed that the assignee should have been substituted.
This objection is answered by section 385, Code of Civil Procedure. Section 318 of the insolvency law (Stats. 1880, p. 87) does not conflict with this provision.
The judgment roll in the Nevada judgment shows that the complaint in that action described the plaintiffs as partners. The findings and judgment are merely in favor of plaintiff individually. It is claimed that this was a partnership judgment, its character in that respect being determined by the pleadings; that the judgment pleaded in this case is an individual judgment, and therefore it was not admissible because of the variance.
It appears that during the pendency of the suit in Nevada the partnership was dissolved. This is probably why the individual judgment was entered. But whether that judgment was regular or not, it was not void for that reason, and there is no variance. If there were a variance, however, in that respect, it is difficult to see how the defendant has suffered injury by it.
That judgment was against all the defendants, and directs that it may be enforced against the joint property of all the defendants, and against the separate property of Sherman. This judgment was not void as to Sherman. (Tay, Brooks & Backus v. Hawley , 39 Cal. 94.)
We do not think there was harmful error in the computation of interest on the judgment. The judgment directed that a portion of the amount recovered should bear interest at the rate of seven per cent. The judgment is silent as to whether the balance of the judgment shall bear interest. If the judgment had been entirely silent as to interest, still interest by law of Nevada would have accrued upon the whole amount. Here was a special provision in the judgment that a portion should bear a specified interest. The remainder would bear the interest under the statute. The interest, as actually computed, is less than the statute rate.
Judgment and order affirmed.