Turner v. Mahoney

Myrick, J.:

Appellant makes two points; viz., 1st. That there is no direct finding that any sum of money was due from defendant to plaintiff. 2nd. That the second finding is against the evidence.

First.—The Court finds the fact of the judgment, and “ that no part of said judgment and decree has ever been appealed from, set aside, or paid.” The Court also finds the execution and delivery of the promissory notes, the amounts paid thereon, and “ that the balance of said notes, with the interest thereon, remains unpaid.” It seems to us that these findings are sufficient. If a judgment has been rendered against A, and if that judgment has never been appealed from; set aside, or paid, it follows that the amount of it is due. So as to the promissory notes. The above findings are equivalent to a specific finding that the amount is due.

Second.—The plaintiff testified: “ I had no agreement with the defendant to take his note in payment of this decree; he said he would pay me the amount he owed me, and give me more too; and he gave me this note as a present.” This evidence was in conflict with the evidence of defendant, and the Court below decided between them. Such decision will not be reviewed here. The consideration for the present might well be the support plaintiff was rendering to the daughters of the parties.

The demurrer should have been sustained as to the items $50, $66.25, and $37.50, it appearing on the face of the complaint that they were barred by the Statute of Limitations; but as the Court, in its findings, found that those items were barred, and excluded them from the judgment, no harm has arisen to defendant.

Judgment and order affirmed.

Sharpstein. J., and Thornton, J., concurred.