27 Cal. 248 | Cal. | 1865
Upon the calling of this cause for trial the defendant demanded a jury, and the plaintiff objected to a trial by a jury on the ground that the defendant had waived a jury by failing to file a notice that a jury would be required six days before the commencement of the term. The Court overruled the objection and the plaintiff excepted. That decision is now assigned .as error.
It is provided by section twenty-three of the Act of 1863, concerning grand and trial jurors, that “ a jury shall be deemed waived unless the parties, or one of them, to the action or proceeding, shall, at least six days before the commencement
The contract made by the plaintiff and Welsh was assignable, and the defendant, as the assignee of the contract and the purchaser of the horse from Welsh, was entitled to all the benefits arising out of the contract and the ownership of the horse that Welsh would have been entitled to, had he continued to be the owner of the horse and the contract.
The remaining error assigned by the plaintiff is, “ That the Court as a matter of law erred in admitting the contract and assignment in evidence without proof that plaintiff had had notice thereof.” The appeal is taken from the judgment, and the record contains, besides the judgment roll, a statement on appeal, which appears to have been settled and certified as a bill of exceptions and as a statement on appeal, by the Judge of the District Court. The statement sets out the contract and its assignment, the fact that they were offered in evidence, that the plaintiff objected to their admission on the ground that the defendant had not proved notice to the plaintiff of the assignment, that the objection was overruled and the evidence admitted; and that the defendant duly excepted to the decision. The statement contains none of the evidence in the case except the contract and its assignment to the defendant and the bill of sale of the horse, by Welsh to the defendant, and it does not affirmatively appear that all the evidence in the case, or all that relates to the question of notice of the assignment is set out in the statement, but on the contrary it appears from the certificate to the statement that evidence was given upon that point, for it is stated in the certificate that “ The plaintiff and defendant both having been sworn and having testified before the jury upon the trial of the cause
Judgment affirmed.