101 Cal. 307 | Cal. | 1894
The plaintiff is a banking corporation, and brought this action upon an account stated between it and the defendants for the amount of certain payments made upon their checks. Judgment was rendered in its favor, and the defendant, Greenberg, has appealed therefrom. One of the defenses set forth in his answer is the failure of the plaintiff to comply with the provisions of the act of April 1, 1876 (Stats. 1876, p.
Ordinarily it is the province of an appellate court to review the judgment of the inferior court as of the time when it was rendered, as ordinarily the judgment of a trial court is a determination of the rights of the parties as they existed at the commencement of the action. This rule is not, however, inflexible. Matters may arise subsequent to the commencement of an action which will affect the rights of the parties thereto, and the judgment to be rendered therein, and supplemental pleadings are authorized in order that these matters may be properly brought before the court. So, too, matters may arise subsequent to an appeal affecting the judgment appealed from, and, although additional pleadings are not permitted in the appellate court, yet, upon proper suggestion and proof of such matters, they will be considered by it. (See Dakota County v. GUdden, 113 U. S. 222.) An appeal from a judgment will be dismissed upon it being properly shown that the trial court had granted a new trial subsequent to the appeal, and had thereby vacated the judgment appealed from. When the jurisdiction of the appellate court depends upon a statute, the repeal of the statute takes away its jurisdiction. In actions of a penal character, depending upon a statute, the repeal of the statute pending the appeal will deprive the appellate court of any power to render a judgment by which this penalty may be enforced. Cooley in his treatise on Constitutional Limitations, says, page 469: “ If a case is appealed, and, pending the
The statute in question in the present case was intended to secure a compliance with the requirements that the legislature had prescribed for persons or corporations engaged in a banking business, and the provision prohibiting them from maintaining any action in the courts of this state without such previous compliance was in the nature of a penalty, which it was competent for the legislature to remit at any time. The privilege which the defendant had under this statute, to avoid the enforcement of his contract, was not given with the view of giving him any advantage, but was conferred upon him by the state for its own purposes. Only the state, and not the defendant, had any interest in the enforcement or remission of this penalty, and after the state has remitted it the appellant is no longer able to avail himself of the privilege which it conferred. (See Ewell v. Daggs, 108 U. S. 143.) It would be an
Upon the facts constituting the plaintiff’s cause of action, the appellant is not in a position to question the sufficiency of the evidence to sustain the findings. There is no plea on his part of the statute of limitations, and by his answer he admits the allegations of the complaint, that at the time when the account was stated, and also *at the commencement of the action, the defendants were partners. At the trial he himself testified that the account was correct, and that the partnership owed the plaintiff the amount sued for.
The judgment and order are affirmed.
Paterson, J., and Garoutte, J., concurred.