12 Cal. 143 | Cal. | 1859
delivered the opinion of the Court—Baldwin, J., concurring in a separate opinion.
This is a proceeding to set aside a confession of judgment made by Kohn & Co. in favor of Schloss & Heilbroner.
The allegations of fraud in the complaint are sufficiently controverted by the answer; and the evidence shows that the amount for which judgment was confessed was actually due Schloss & Heilbroner by Kohn & Co.
The case is entirely analogous to that of Richards v. McMillan et al, (6
I agree with the Chief Justice in the conclusion at which he has arrived. After an attentive examination of the case, I think we are precluded by the case of Richards v. McMillan, from holding that the failure to state more specifically the cause of action in the affidavit avoids the judgment. The want of this more complete statement is, at most, only prima facie evidence of fraud. Indeed, if disposed at all to interfere with that case, I should feel disposed, notwithstanding the New York cases, to question whether a judgment so confessed was evenprima facie fraudulent, mainly for the reason that the rule invoked, if such it can be called, requiring a fuller statement of the facts, wants the essential element of certainty. It is better to have a rule less correct than one better in the abstract, but more diffi- ■ cult of ascertainment and application. The question is not easy of answer, if the brief, general statement in this case is not sufficiently certain, what would be essential. How minute ought to be the statement of the transaction out of which the indebtedness confessed grows ? Is it to be governed by the circumstances of each particular case ? Then we should probably have litigation in each case to determine the sufficiency of the statement in that case. I cannot think the Legislature intended any more definiteness of particularity in case of confession of judgments than in complaints upon the same cpause of action in the ordinary course of procedure. But as this is a question of practice, and many judgments have probably been taken under it, we consider it better to let the decision in the case of Richards v. McMillan stand.
The other points made in the learned and elaborate brief of the appellants’ counsel, I think are not well taken. It is impossible in the pressure of business to consider at length the various questions raised. I think that the old rules of Chancery pleading are superseded by the Practice Act; that the material charges of fraud are all substantially denied in the answer. Those insufficiently stated, if admitted, are not sufficient to establish the fraud charged: that the deposition of the book-keeper of defendants having been taken on examination and
As, however, the Court below decided the question, apart from any question of these proofs, on the first point, and thereby the plaintiff may have omitted to introduce testimony on the other points, the parties may be allowed to try the case fully on the facts unaffected by this judgment.
