Century Indemnity Co. v. Nelson

This is the second appeal in this case. We refer to the opinion on the first appeal, Nelson v. Century Indemnity Co., 65 F. (2d) 765, for a statement of facts. The former appeal was taken by G. Nelson from a judgment that she take nothing. This appeal is by her opponent the Century Indemnity Company, which will hereafter *646 be referred to as the indemnity company, from a judgment in favor of G. Nelson for the full amount claimed. G. Nelson, appellee, is suing the indemnity company, appellant, as assignee of a judgment rendered against that company in an attachment suit, No. 204668, commenced by V. Berges in the superior court of California in San Francisco, against N. Abraham, H. Silverman, L. Silverman, doing business under the name of N. Abraham Mercantile Company, and the San Francisco Iron & Metal Company. (Silverman and Silberman are stipulated to be one and the same.)

On the first trial the indemnity company, which had executed a release of attachment bond on behalf of the San Francisco Iron & Metal Company, H. Silberman, and L. Silberman, defeated recovery by G. Nelson on the judgment in action No. 204668, supra, assigned to her upon the ground that she was trustee for…

(dissenting).

I am unable to concur in the denial of the consideration of the merits of the contention of this petition for rehearing, name *653 ly, that the court erroneously held the findings support the judgment.

In the opinion so holding we proceeded ex industria to discover that the following assignment of error, “that the judgment is contrary to law in that it is not justified by any evidence nor is it supported by findings of fact,” violated a procedural rule because it contains the assignment of more than one error and fails to “set out separately and particularly each error assigned and intended to be urged.”

I say ex industria, because the first brief of the appellant on the appeal set forth this contention, as follows: “The findings, conclusions of law, and judgment of the court are, therefore, not sustained by any findings and are not in accord with the law of the case as established by this court in its prior decision.” And also: “Therefore, the judgment of the court in the present instance is not only not sustained by any findings but * * *

The brief of the appellee meets the contention under this statement of the error with many pages of argument. What is…