Opinion
Rehearing Denied Sept. 5, 1930
Hearing Granted by Supreme Court Oct. 2, 1930.
Appeal from Superior Court, City and County of San Francisco; J.J. Trabucco, Judge.
Action by Sol Siebenhauer against the Bank of California National Association and another. Judgment for defendants and plaintiff appeals.
Affirmed.
COUNSEL
S. Laz Lansburgh, of San Francisco (S. Joseph Theisen, of San Francisco, of counsel), for appellant.
Redman, Alexander & Bacon, of San Francisco (H.O. Mundhenk, of San Francisco, of counsel), for respondents.
OPINION
STURTEVANT, J.
The plaintiff brought action for conversion. The defendants answered, and a trial was had before the court sitting without a jury. The court made findings in favor of the defendants, and, from a judgment in their favor, the plaintiff has appealed and has brought up the judgment roll.
In his complaint the plaintiff alleged: The corporate capacity of the Bank of California; that on the 5th day of January, 1926, the plaintiff was the owner and entitled to the immediate possession of one bond of the face value of $1,000, issued May 1, 1923, by the Spring Valley Water Company, which is of the value of $1,100; that, at the time the bond was executed the Spring Valley Water Company executed a deed of trust to the Union Trust Company of San Francisco, and, continuing, it alleged some of the covenants contained in the deed; and that on the 5th day of January, 1926, the bond came into possession of the defendants and they converted it and the coupons attached. To the complaint the plaintiff attached a copy of the bond. The defendants answered by pleading denials of the allegations made by the plaintiff and also alleged that the bond "*** was and is a negotiable instrument pursuant to the laws of the state of California and that the defendants purchased the alleged bond for the full value thereof in the open market prior to maturity thereof and without notice of any claim or demand or right therein or thereto of the plaintiff. ***" On the allegation of conversion the trial court made a full finding responsive to the issues made by the pleadings finding the fact against the plaintiff and in favor of the defendants. It also found in favor of the defendants the affirmative matter stated above. Continuing, it made a number of findings regarding probative matters, each and all of which are outside of the issues made by the pleadings. Findings made outside of the issues are nugatory and may not be used to impeach the judgment. Rudel v. Los Angeles County, 118 Cal. 281, 286, 50 P. 400. In the absence of a bill of exceptions this court must assume that every finding made by the trial court was sustained by evidence free and clear of any objection. This court, therefore, is not at liberty to express an opinion on the question as to whether the bond above mentioned was or was not a negotiable instrument.
The judgment is affirmed.
We concur: NOURSE, P.J.; SPENCE, J.