Morris v. Wilson
Morris v. Wilson
Opinion of the Court
delivered the opinion of the court:
It may be safely stated that the record in this case is not in conformity with any of the rules governing the presentation of appealed cases to this court. It may be gathered from the same, however, that in April, 1891, appellants, as plaintiffs below, brought suit in the district court of Jefferson county alleging, in substance, that on April 20, 1888, Samuel L. Morris executed and delivered to the appellee Wilson, who was defendant below, his note for fifty-five hundred dollars ($5,500.00) secured by a trust deed on an interest in certain land in Jefferson county; that the said note was an accommodation note solely and without consideration; that the same was obtained by Wilson by misrepresentation and fraud; and that the said Wilson was about to enforce the collection of the same by foreclosure of the trust deed, instead of-returning the note to the plaintiffs and releasing the deed of trust. The prayer was for injunction to restrain the sale of the property securing the payment' of the note, and for return of the latter. The trustee named in the trust deed and the sheriff of Jefferson county, as successor in trust, were joined as defendants. The complaint further alleges that, after the execution of the note and trust deed, the plaintiff, Samuel L. Morris, sold and conveyed the property described in the deed to Emma L. Morris, his wife, who is named as one of the plaintiffs.
The answer of the defendant Wilson is in effect a denial of the allegations of the complaint, -as far as same related to the obtaining -of the note by fraud and misrepresentation, and a denial that the same was without consideration.
The plaintiffs obtained judgment at the first trial, from which appellees herein appealed to the
The record discloses that there was a consideration for the note. The plaintiffs below objected to the testimony showing the consideration, upon the ground that the same was inadmissible under the denials of the answer and that the admission of the same was error, which error is assigned and discussed in this court. Under the issues presented by the plaintiffs in this case, the testimony was properly admitted. The plaintiffs allege in their complaint that the note and trust deed were solely for accommodation and without consideration and that they were obtained by fraud. The defendant denied this, and the evidence introduced goes to disprove the allegations of the complaint. The evidence was admissible under the denials if it tended to disprove plaintiffs ’ allegations. — Bliss on Code Pleading, §327, and cases cited.
Appellant urges that when it appeared that there was consideration for the note, the trial court sitting in equity should have ordered an accounting to determine hew much was' due, upon the theory that the trust deed was being foreclosed and the property sold to pay the full amount of the note, when only a portion 'of the same was shown to be due
The main contention seems to have been whether some portions of these moneys were advanced by defendant Wilson for the benefit of the plaintiff Morris, and to enable Morris to pay debts due and expenses to become due on account of a- certain mining lease, or whether they were advanced by Wilson on his own account, and should not have been charged to the plaintiff. There was much conflicting testimony upon this point, hut all these matters were questions of fact properly submitted to the court below for its determination, and we presume it found the issues in favor of the defendant. There was' sufficient evidence to support such findings, as shown by the record as presented. Appellant in his brief argues atTength concerning what the hooks did and did not show. We cannot review this testimony for the reason that it is not presented by the abstract. The brief nowhere points out any folio or page of the abstract which calls our attention to the hook entries, and upon a careful examination of the abstract we are unable to discover any book entries, although many are alluded to.
. We cannot and do not attempt to review evidence not presented by the abstract, nor to search for errors that are not specifically pointed out. As a matter of fact the abstract contains no record of the judgment which is alleged to have 'been entered. We are presuming that there was a judgment unfavorable to the appellants from which this appeal was taken.
Appellants contended in reply £hat the pleadings -in and by themselves are sufficient to show that error was committed in permitting introduction of testimony to show that there was consideration for the note and trust deed. We cannot agree with this
Chief Justice Steéle and Mr. Justice Campbell concur.
Reference
- Status
- Published