We e are of opinion that the co-defendants of the appellant were all interested in the judgment and would be affected by its reversal, and by consequence the notice of appeal should have been served on each of them. (Senter v. Bernal, 38 Cal. 640; Hiscock v. Phelps, 2 Lansing, 118; Cotes v. Carroll, 28 How. Pr. 446; Thompson v. Ellsworth, 1 Barb Ch. 627.) The only appeal attempted to be taken in the case is from the judgment, and as such appeal was not properly taken, we cannot consider any one of the various orders to which our attention has been called, no one of them being appealable. The motion to dismiss the appeal must be granted. So ordered. We concur: Myrick, J., Sharpstein, J. DEPARTMENT No. 2. [Filed April 20, 1883.] MACNEIL, APPELLANT, v. WARD, RESPONDENT. DECBEE-MORTGAGE-FORECLOSURE-DEFICIENCY. The judgment is not erroneous, because there is no direction in it that a judgment be docketed for a deficiency. (Leviston v. Swan, 33 Cal. 480.) ID.-ID. The judgment seems to be defective, in not expressly adjudging that defendant is personally liable to plaintiff for the money found to be due. This is inferentially done. Appeal from Superior Court, Los Angeles County. W. P. Gardner for respondent. THORNTON, J., delivered the opinion of the Court: The judgment in this case is not amenable to the criticism of counsel for appellant, that it is erroneous because there is no direction in it that a judgment be docketed for deficiency. In this respect it (the judgment) accords with Leviston v. Swan, 33 Cal. 480, where the question is considered and correctly determined. The only point in which the judgment seems to be defective is in not expressly adjudging that the defendant Ward is personally liable to the plaintiff for the money found to be due. This is inferentially done. The Court below is directed on the going down of the remittitur to amend the judgment by inserting words remedying this defect, and as thus modified the judgment will stand affirmed. We concur: Sharpstein, J., Myrick, J. DEPARTMENT No. 1. [Filed April 20, 1883.] GARDNER, RESPONDENT, v. OMNIBUS R. R. CO., APPELLANT. RECEIPTS-EVIDENCE-PAYMENT-SALARY. Receipts for salary are at least prima facie evidence of the payment of the money. ID.-ID. The action was to recover a balance alleged to be due for services rendered. Held, whatever loss accrued to plaintiff, by reason of his leaving his salary in O'Neil's hands (defendant's Secretary), plaintiff must stand. Both he and O'Neil were officers of the defendant. The Company furnished O'Neil the funds with which to pay the wages of its employees, and each month the plaintiff executed his receipt for his salary. So far as the Company could see it was paid in fact, and it was paid in contemplation of law as well as of the parties-the plaintiff, for reasons of his own, electing to leave the money in the hands of the individual O'Neil, Appeal from Superior Court, San Francisco. Lloyd, Newlands & Wood for appellant. Ross, J., delivered the opinion of the Court: Plaintiff sued to recover of defendant corporation the sum of eight hundred and two dollars and twenty-one cents, with interest from the first day of September, 1876, being a balance alleged to be due the plaintiff, at the date mentioned, for services theretofore rendered by him for defendant as Superintendent of its street railroad. Plaintiff was engaged as such Superintendent, at a salary of $200 per month, for many years immediately preceding September 1, 1876. On that day his services terminated. During most of that time he was also one of the Directors of the defendant. During the same time one O'Neil was its Secretary. When these relations were first assumed, the safe that was moved to the defendant's office, to be used as its safe, contained certain papers, jewelry, trinkets and money belonging to the plaintiff, which the latter permitted to remain there, in charge of O'Neil for safe-keeping. The Secretary was charged with the duty of paying the employés of the defendant, and was furnished with the necessary funds for that purpose, and every month during the plaintiff's term of service, he signed and delivered to the Secretary, in writing, a receipt acknowledging the payment by defendant of the full amount of his salary for such month. Such receipts are at least prima facie evidence of the payment of the money. But the plaintiff seeks to avoid the effect of the receipts by saying that, as a matter of fact, when he gave the receipts he did not get the money, but left it with the Secretary, to be drawn by him from time to time as he desired. That the plaintiff did leave the money in the hands of O'Neil is quite clear from the record, but that the defendant is not responsible for any loss occasioned thereby we think equally clear. Plaintiff evidently had confidence in O'Neil. According to his own testimony, he left his private papers, jewelry, trinkets, and money made in speculations, with him for safe-keeping. In the same way, we think, the evidence shows he left his salary. In his testimony the plaintiff says: "I was a Director when Mr. O'Neil was made Secretary. He was the Secretary and I was the Superintendent. We lived in one office for sixteen years and never had a dispute. I signed the receipt for salary because the money was safe. I was Superintendent of the Company, and whenever I wanted to draw it I knew it was good. I had all that I had as valuables in the safe, and private papers. I had two bags of money, one of foreign and domestic coins that amounted to several hundred dollars, and lots of other things. I never drew my salary money out except that I drew it out on order. Mr. O'Neil kept it there in the safe, and everything else while I was with the Omnibus Railroad Company." And again: "At the time I first commenced doing business in this way with Mr. O'Neil, I told him, 'This is my old safe, you are carrying the key of it, and my things are all in there, and I am going to make this my bank and going to leave my money with him' (O'Neil). I being Superintendent and Director, I thought it as good as a bank. I will leave it here in the safe all the time. I speculated and made money on the outside, and I carried it there for safe-keeping, and Mr. O'Neil always had the keys of that safe. I think Mr. Jordan had the key if he was absent." Whatever loss occurred to the plaintiff by reason of leaving his salary in O'Neil's hands, the plaintiff must stand. Both he and O'Neil were officers of the defendant. The Company furnished the latter with funds with which to pay the wages of its employés, and each month the plaintiff executed his receipt for his salary. So far as the Company could see, it was paid in fact, and we think it was paid in contemplation of law as well as of the parties-the plaintiff, for reasons of his own, electing to leave the money in the hands of the individual O'Neil. Judgment and order reversed, and cause remanded. DEPARTMENT No. 1. [Filed April 20, 1883.] NEVADA BANK, RESPONDENT, v. DRESBACH ET AL., APPELLANTS. JUDGMENT-AFFIDAVIT-MERITS-MOTION. An affidavit of merits is indis pensable as the basis of a motion to vacate a judgment regularly entered. Appeal from Superior Court, San Francisco. D. L. Smoot for appellants. McAllister & Bergin for respondent. By the COURT: This is an appeal from a final judgment and an order denying a motion to vacate and set it aside. Defendants were regularly served with process. One of them appeared, demurred and answered; the other did not. The demurrer was overruled. The case was tried; but at the trial defendants were not present by themselves or counsel, and the Court, after hearing the evidence of the plaintiff, gave judgment against both defendants. The Court had jurisdiction of the subject-matter and of the persons of defendants, and there is no error apparent on the face of the judgment-roll. On the motion to vacate the judgment there was no affidavit of merits. Such an affidavit was indispensable as the basis of the motion. (Parrot v. Den, 34 Cal. 79; Francis v. Cox, 33 id. 323; Bailey v. Taaffe, 29 id. 422; People v. Rains, 23 id. 129.) Judgment and order affirmed. DEPARTMENT No. 2. [Filed April 18, 1883.] MCCRACKEN, APPELLANT, v. PACIFIC COMMERCIAL COMPANY ET AL., RESPONDENTS. CITY SLIP LOT-EJECTMENT-EVIDENCE-STATUTE OF LIMITATIONS. Ejectment for a 66 city slip lot" in San Francisco. Defendants relied on the Statute of Limitations, and the trial Court found in their favor. On appeal held, if the statute could be relied on, such defense is made out. ID.-ID. Plaintiff contended the statute did not run because the lot sued for was held by the city and county of San Francisco for the public use. But held, there is no evidence of such fact in the record. Appeal from Superior Court, San Francisco. B. S. Brooks for appellant. R. B. Wallace for respondents. THORNTON, J., delivered the opinion of the Court: Action of ejectment against S. C. Hastings and other defendants, who were his tenants. If the Statute of Limitations could be relied on as a defense in this case, our opinion is that such defense is made out. It is contended that the Statute of Limitations did not run as to the lot sued for, for the reason that it was held by the city and county of San Francisco for the public use. There is no evidence of this in the bill of exceptions, and no such fact is found. This being the case, no such fact is before us for consideration. If any such matter appeared in evidence, we must hold, as the case is presented to us, that it was negatived by the Court below. Under these circumstances we are of opinion the contention of the appellant cannot be maintained, and we cannot say that the Court below was wrong in holding that plaintiff's action was barred by the Statute of Limitations. We find no error in the record, and the judgment and order are affirmed. We concur: Myrick, J.; Sharpstein, J. DEPARTMENT No. 2. [Filed April 10, 1883.] No. 8179. HAYES, RESPONDENT, v. KINSMAN, APPELLANT. APPEAL JUDGMENT-ROLL-PLEDGE. Complaint for foreclosure of pledge. Judgment for plaintiff. Appeal on judgment-roll. No error apparent. The complaint states a cause of action, and the findings support the judgment. The Court found upon all the issues in favor of plaintiff. Appeal from Superior Court, San Francisco. Moses G. Cobb for appellant. William H. H. Hart for respondent. By the COURT: This is an appeal from a judgment, and the record before us consists of the judgment-roll alone. If the complaint states facts sufficient to constitute a cause of action, and the findings of the Court support the judgment, we cannot disturb it. The Court found upon all the issues in favor of the plaintiff, and we are satisfied that the findings support the judgment. The complaint, in our opinion, states facts sufficient to constitute a cause of action. Judgment affirmed. |