207 P. 554 | Cal. | 1922
The complaint states a cause of action to recover judgment against the two defendants. It alleges that the defendant Jennings became indebted to Lantz, Hyatt, and Garroway in the sum of $972.66 for services as her attorneys in two certain actions, in one of which a judgment was recovered in her favor for over $7,000, that thereafter she assigned the judgment to the defendant Davis, who, in consideration of said assignment, promised his codefendant that he would pay the said attorneys' fees due to the said Lantz, Hyatt, and Garroway, and that said parties before the action was begun assigned the claim against said defendants to the plaintiff.
[1] To this complaint the defendant Davis separately demurred. The sole ground of demurrer is that the complaint seeks to charge Davis with the debt of Jennings upon an undertaking not in writing. The basis of this objection is that the contract alleged against Davis was a contract of suretyship or guaranty which is invalid unless made in writing and signed by the party to be charged. This principle does not apply to contracts of the character alleged in the complaint. It was not a contract to guarantee or become surety for the obligation of Jennings, but was an original obligation on his part to pay the debt of Mrs. Jennings directly to her creditors and it was based upon a sufficient consideration, that is, the transfer to him by her of the judgment above mentioned. It comes within the description of such original obligations set forth in section
[2] After the taking of the default and judgment against him, Davis moved to set it aside under section
[3] As the jurisdiction on appeal depends on the fact of the filing of a notice of appeal and not upon the fact of its being contained in the record, we have deemed it advisable to treat the case on its merits. It will, therefore, be unnecessary to act upon the application made by the appellant, since the filing of a transcript, to amend the same by inserting therein an authenticated copy of the notice of appeal. The appellant would be entitled to amend the record by filing such copy, as, of course, under section 953 of the Code of Civil Procedure, as amended in 1921. We have assumed that the appeal was properly taken and that the record discloses it, although the notice of appeal was set forth in the bill of exceptions and was not directly certified by the clerk as a correct copy.
The judgment and order appealed from are affirmed.
Shurtleff, J., Waste, J., Lennon, J., Sloane, J., Lawlor, J., and Wilbur, J., concurred.