46 Colo. 497 | Colo. | 1909
delivered the opinion of the court:
This p’s an action by The Teller Lumber Company against two- domestic corporations. designated in the record as the Reduction Company and the Homestake Company, for a balance due upon an open account for lumber and other merchandise sold and delivered to them'by the plaintiff. The individual directors of the Reduction Company are joined as defendants and judgment is also' asked against them upon the ground that, as such officers, they failed to file the annual report of their company as the statute provides. The trial was to the court without a jury and the judgment rendered dismissed the Homestake Company from the action, and went in plaintiff’s favor against the Reduction Company and its directors, from which judgment against them they have appealed. ’
It is doubtful if such objections were made or exceptions taken at the trial by defendants, who are
Serious complaint is made of a remark by the presiding judge .with respect to this payment, that the court would take Walsh’s testimony on that proposition, since it is asserted to be in conflict with the testimony of Mr. Temple, whose deposition was taken by plaintiff, and which was also offered in evidence by the Reduction Company. We do not perceive the force of the objection. It may be that the court thought that the testimony of Walsh, which consisted largely of a reproduction of what the company books contained, was entitled to more consideration than the recollection of Mr. Temple as to their contents, who admitted that he had not had recent access to them, and who, might have been, and doubtless was, honestly mistaken. Our examination, however, of the record fails to disclose any such conflict between the testimony of these two witnesses on this issue as is claimed by appellants in their argument.
One of the grounds of the motion for new trial is that appellants were surprised at the trial at the
We conclude, with what might well have been the opening' observation, that the principal one, if not all, of the questions argued here by appellants is wholly irrelevant and devoid of merit on this review. Plaintiff’s demand against these appellants, assuming, as we may, there was no novation of the debt, was abundantly proved. The burden of appellants’ complaint is that the judgment did not also go against their codefendant, the Homestake Company. That is something of which the plaintiff might have complained, but did not. This appeal is by those defendants against whom judgment went in plaintiff’s favor, not an appeal from the judgment dismissing the Homestake Company from the action. The sole appellee is.the plaintiff. The Homestake Company is not made an appellee and has not appeared here. What right have appellants, in this state of the record, on an appeal from a judgment against them in plaintiff’s favor, to> complain of the judgment of dismissal of a codefendant from which they have not appealed and to which no assignment of errors is
No error prejudicial to appellants appearing, the judgment is affirmed. Affirmed.