Opinion
No. 46.
September 21, 1905.
APPEAL from a judgment of the Superior Court of Sacramento County. Peter J. Shields, Judge.
The facts are stated in the opinion of the court.
Hopkins Hinsdale, for Appellant.
J. Frank Brown, for Respondent.
This is an appeal from a judgment resting on the judgment-roll alone. The only question presented is the sufficiency of the findings to support the judgment. The court made no express finding on the statute of limitations, pleaded as a defense to the first cause of action set forth in the complaint, and such failure is assigned as error. The findings, however, clearly show the date when this cause of action accrued, and from this it is apparent that the cause of action was not barred by the statute. This was sufficient. ( Ready v. McDonald, 128 Cal. 664, [79 Am. St. Rep. 76, 61 P. 272]; Paine v. San Bernardino, 143 Cal. 656, [ 77 P. 659]; Krasky v. Wollpert, 134 Cal. 338, [ 66 P. 309]; Warren v. Hopkins, 110 Cal. 512, [42 P. 986]; Breeze v. Brooks, 97 Cal. 77, [31 P. 742]; Baum v. Roper, 145 Cal. 116, [ 78 P. 466]; Eva v. Symans, 145 Cal. 202, [ 78 P. 648].)
The court omitted to find touching a disputed item of $154.20, and the respondent, upon the argument, confessed error in this regard, and filed a written waiver and release of the judgment to the extent of this sum and the interest thereon, amounting to $26.03, and asked that the judgment be modified accordingly and as so modified that the judgment be affirmed. This course would render the error utterly harmless to appellant.
The judgment is therefore modified by striking out said items, and by reducing the total amount thereof to the sum of $790.73. As so modified the judgment is affirmed.
Chipman, P. J., and Buckles, J., concurred.