Troy

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 759 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 760 This is an appeal by the defendant from a judgment rendered against him in an action commenced by the plaintiff to recover $17,000 alleged to have been loaned by the plaintiff to the defendant. The appellant has brought up the judgment-roll and a bill of exceptions — a record consisting of 1,500 pages. The appellant has filed three briefs and the respondent has filed three. Those facts will account for the length of this opinion. In the original complaint, and likewise in the amended complaint, the plaintiff alleged that "On April 11, 1913, defendant herein borrowed from plaintiff herein, and plaintiff herein loaned to defendant herein, the sum of $17,000; and on said date defendant herein promised in writing to repay said sum of $17,000 to said plaintiff. . . ." In the original and amended complaints the above language was followed with the phrase "within a reasonable time after said April 11,…

The appellant has filed a petition for a. rehearing. The point that the trial judge who heard the motion for a new trial had no jurisdiction to hear the motion was not presented in the opening brief of the appellant and it was therefore waived. (Hihn v. Courtis, 31 Cal. 398 ; Webber v. Clark, 74 Cal. 11, 13 [ 15 Pac. 431 ]; Baci galupi v. Phoenix Bldg. etc. Co., 14 Cal. App. 632 [ 112 Pac. 892 ].)

In the opinion heretofore filed a paragraph on pages 6 and 7 is devoted to a consideration of the claim of the appellant that certain misconduct on the part of the plaintiff’s attorney occurred during the trial which constituted prejudicial error and the court adverts to the fact that if such matters were contained in the bill of exceptions, the location of the objectionable matters was not stated in the appellant’s opening brief. We repeat the statement. It was also stated by the court that the acts and conduct of counsel in presenting evidence, the objections thereto, and the rulings thereon, should be contained in the bill of exceptions and not in affidavits if an appellant would have the same considered by the court. The appellant also questions the correctness of that statement,…

This is an appeal by the defendant from a judgment rendered against him in an action commenced by the plaintiff to recover $17,000 alleged to have been loaned by the plaintiff to the defendant. The appellant has brought up the judgment-roll ando a bill of exceptions—a record consisting of 1,500 pages. The appellant has filed three briefs and the respondent has filed three. Those facts will account for the length of this opinion.

In the original complaint, and likewise in the amended complaint, the plaintiff alleged that ‘ ‘ On April 11, 1913, defendant herein borrowed from plaintiff herein, and plaintiff herein loaned to defendant herein, the sum of $17,000and on said date defendant herein promised in writing to repay said sum of $17,000 to said plaintiff. ...” In the original and amended complaints the above language was followed with the phrase “within a reasonable time after said April 11, 1913.” During the trial and after the plaintiff’s evidence had been introduced, the trial court allowed the plaintiff to strike out the phrase last quoted and to insert in lieu thereof, “on or before ninety (90) days from and after the said 11th day of April, 1913, with interest thereon at…