Smart v. Valencia

• Decision Date: 05 August 1926
• Docket Number: 2728.
• Citation: 248 P. 46,49 Nev. 411
• Parties: SMART v. VALENCIA et al.
• Court: Nevada Supreme Court

248 P. 46

49 Nev. 411

SMART v. VALENCIA et al.

No. 2728.

Supreme Court of Nevada

August 5, 1926

Appeal from District Court, Washoe County; Thomas F. Moran, Judge.

Action by L. S. Smart against Conceso Valencia and others copartners doing business under the name and style of the Conceso Valencia Company. Judgment for plaintiff, and defendants appeal. Affirmed.

Price & Hawkins, of Reno, for appellants.

Morley Griswold, of Elko, and Cantwell & Springmeyer, of Reno, for respondent.

SANDERS J.

This appeal is from a judgment upon the judgment roll alone. The judgment roll does not include any bill of exceptions, but consists simply of the pleadings, findings of fact, judgment notice, and undertaking on appeal.

Appellants defendants below, seek reversal of the judgment upon several grounds: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) that the complaint and findings of fact do not support the judgment (3) that the judgment in form is against law and is otherwise illegal for the reasons assigned in argument.

The second amended complaint contains three causes of action. The court found in favor of the plaintiff upon the first cause of action, and rendered judgment accordingly. The complaint for a first cause of action alleges:

"I. That the defendants Conceso Valencia, Francisco Valencia, and Amado Yriarte are now and during all the times herein mentioned have been copartners doing business under the name and style of Conceso Valencia Company, and that they are residents of Washoe county, Nev.

II. That on or about February 25, 1924, at Ely, Nev., plaintiff and defendants made and entered into an agreement in writing whereby defendants sold and plaintiff purchased a band of sheep to be delivered in Jack Valley, Nev., on or about March 7, 1924, said sheep being described, * * * at and for the price and sum of $11 per head, and that plaintiff then and there paid defendants the sum of $2,000 to be applied on said purchase price.

III. That thereafter, and on or about March 5, 1924, the said band of sheep was delivered to plaintiff by defendants in said Jack Valley, Nev., and plaintiff and defendants then and there counted and caused to be counted the said sheep, but by mutual mistake and error they fixed the number of said sheep at 2,308, when in truth and in fact the said sheep numbered 2,208, and no more, which mistake was not discovered by plaintiff until two or three days thereafter. That immediately after counting the said sheep as aforesaid, and on or about said March 5, 1924, at said Jack Valley, Nev., plaintiff paid defendants the sum of $21,630, neither plaintiff nor defendants then knowing of said mistake so as aforesaid made by them in counting the sheep in said band, and that included in said $21,630 there was an excess payment of $1,100, which was not then and there due or owing or payable from plaintiff to defendants on said transaction but was so paid solely on account of the said mutual mistake in counting said sheep, as aforesaid, and was paid for the use and benefit of plaintiff, which said sum of $1,100 defendants then and there promised to pay plaintiff.

IV. That thereafter, and on or about March 15, 1924, plaintiff demanded of defendants the payment of the said sum of $1,100, but that defendants failed, neglected, and refused, and still and now fail, neglect, and refuse to pay the same, and that there is now due, owing, and unpaid from defendants to plaintiff the full sum of $1,100, with interest thereon at the legal rate from March 5, 1924."

The specific objection to the complaint is that it does not sufficiently show an indebtedness from the defendants to the plaintiff, and therefore it does not state a cause of action for money had and received. This contention is based upon the hypothesis that, if plaintiff, as alleged in the complaint, paid $2,000 at one time and $21,630 at another for 2,208 sheep at $11 per head, there could not have been included in the said sum of $21,630 an excess payment of $1,100 as alleged in the complaint; but, on the contrary, by mathematical calculation, instead of there being an overpayment, there was an underpayment of $658.

Subsequent to the filing of appellants' opening brief attacking the complaint on the grounds stated, the respondent moved this court for leave to bring before the court other records outside the judgment roll to show that the specific objections to the complaint and findings were cured by an order made after the judgment and pending the appeal therefrom, directing that the complaint and findings be amended and corrected by canceling the figures $21,630 appearing in paragraph III of the complaint and interlining the figures $23,630. It must be conceded that, if the amendment and correction were authorized, then the specific objections to the complaint and findings must fall, because they have no foundation upon which to rest.

Appellants resisted the motion, upon the ground that on appeal from a judgment upon the judgment roll alone the court is limited in its determination to the questions presented by the judgment roll, and that nothing can be assumed or considered that does not appear upon the face of the roll itself. Though our statute specifies what constitutes the judgment roll and provides that on appeal from a judgment upon the judgment roll alone only errors can be considered which appear upon the face of the roll, we are of opinion that there is no sacrosanct prohibition against considering evidence outside the judgment roll which makes the judgment speak the truth. Matters often arise subsequent to appeal which may be brought before the appellate court on evidence outside the record and which will be considered and acted on in disposing of the appeal. 2 Cal. Jur....