18 Cal. 128 | Cal. | 1861
Field, C. J. concurring.
This is an action upon a nonnegotiable promissory note. The note was assigned by McDonald, the payee, to one Bower, who assigned it to the plaintiff. The action is against the maker, and McDonald and Bower, assignors. McDonald was the only party served with process, and the defense is by him alone.
It is contended that as against McDonald the action cannot be maintained for want of privity. The answer to this objection is to be found in the provisions of the statute regulating the rights and
The other questions in the case are unimportant. The case of Lowe v. Alexander (15 Cal. 296) does not sustain the position of the appellant upon the question of jurisdiction. The objection is based upon a motion made previous to the filing of the answer to dismiss the action, but this motion, we think, was properly denied. The ground of the motion was that it did not appear from the record that the justice had acquired jurisdiction of the person of the defendant, but it would have been improper to set aside the whole proceedings upon that ground. If the facts were such that the record could not have been amended, a showing to that effect would have entitled the defendant to a dismissal, but it is obvious that he could not come forward and defeat the whole case in limine upon the insufficiencies of the record.
We cannot perceive in the objections which are urged to the complaint any cause for reversal. The note with the indorsements thereon constituted a sufficient foundation for the commencement of the suit, and the pleadings in the case were oral. We cannot interfere without violating the principle upon which we have always acted in such cases. ,
Judgment affirmed.