57 Cal. 646, 7,417, Jeffreys v. Hancock

Docket Nº:7,417
Citation:57 Cal. 646
Party Name:THOMAS JEFFREYS v. HENRY HANCOCK
Attorney:Henry Hancock, Appellant in person. Bicknell & White, for Respondent.
Case Date:April 01, 1881
Court:Supreme Court of California
 
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Page 646

57 Cal. 646

THOMAS JEFFREYS

v.

HENRY HANCOCK

No. 7,417

Supreme Court of California

April, 1881

Department Two

Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Seventeenth District Court, Los Angeles County. Sepulveda, J.

COUNSEL

Henry Hancock, Appellant in person.

There is no authority under our Code for contending that the cross-complaint should pertain to matters occurring previous to the filing of the complaint. By § 438, Code Civ. Proc., relative to a counter claim, subdivision two, the ground must be existing at the commencement of the action; " but under § 442 it may be filed subsequently by leave of Court, as was done in the present case.

Bicknell & White, for Respondent.

The facts as alleged do not constitute a counter-claim, as they do not arise out of the transaction set forth in the complaint, as the foundation of the plaintiff's claim, and are not connected with the subject of the action, and do not arise upon contract, and it appears upon the face of the so-called cross-complaint that the claim did not exist at the commencement of the action. In short, it is not within a single provision of § 438, Code Civ. Proc.

OPINION

The Court:

This action was brought to recover the sum of $ 710, claimed by the plaintiff to be due him from defendant for services rendered, and for board paid by him under a contract with the defendant. The case was tried by a jury, and a verdict was rendered for the sum of $ 683.

Two points were made on the appeal: First, that the verdict

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