8 Or. 324 | Or. | 1880
By tbe Court,
Tins was a several action against tbe respondent upon a joint and several promissory note, made, executed, and delivered by him and B. E. Freeland to the appellant, at San Francisco, California, on May 1, 1869.
To this cause of action tbe respondent undertook to set up two defenses: 1. That said note was executed and made payable in tbe state of California; that tbe respondent was, at tbe time of tbe making of said note, a resident thereof, and lias been ever since, and now is a resident of said state, and tbe statute of limitation of tbe state of California is there set up in bar of said cause of action, to wit, four years, tbe statute being set out in proper form; 2. Tbe second defense is that tbe respondent was discharged from bis liability upon said note, on tbe ground that tbe appellant, for a valuable consideration, prior to the commencement of tbe
Both of these defenses were demurred to by the appellant, and said demurrer being overruled by the court, and the appellant electing to stand upon his demurrer, the court rendered judgment against him for costs, from which he has appealed to this court. A motion was also interposed by the respondent in the court below, to discharge the attachment, upon the ground of the insufficiency of the affidavit to authorize the issuance of the writ, which was sustained by the court.
The overruling of the demurrer to these defenses and the sustaining of this motion to dissolve the attachment, are the grounds of error complained of by the appellant. The first separate answer, we think, fails to contain facts sufficient in law to constitute a defense to the action, in this—it fails to show that the cause of action arose between non-residents of this state, which is an essential fact, that must be alleged in order to show that the action was barred in the state of California.
It is alleged that the note was executed in state of California and that the respondent was resident of said state, has been ever since, and now is, but it fails to allege that the appellant is now or ever was a resident of said state. And in this it is defective, and insufficient to bring the defense within the provisions of sec. 26, p. 109 of the Code. That section is in these words: “When the cause of action has arisen in another state * * * between non-residents of this state, and by the laws of the state where the cause of action arose an action can not be maintained thereon by reason of the lapse of time, no action shall be maintained thereon in this state.” The demurrer of appellant to this defense we think was improperly overruled.
The facts alleged in the second separate answer we think are sufficient to constitute a defense to this action, and that the demurrer to said defense was properly overruled by the court. It is a well-settled rule of elementary law that “a release of one joint maker by the holder * * * will
The only remaining ground of error is based upon the ruling of the court in sustaining the motion of respondent to dissolve the attachment. This motion was based upon the insufficiency of the affidavit to authorize the clerk to issue the writ, and the court below entertaining this view, dismissed the attachment. The affidavit is in the language of the statute without undertaking to set out the probative facts necessary to establish the ultimate facts required by the statute to be shown as the basis of the writ. The present statute under which the attachment was issued was taken from the California practice act, and was adopted in 1876, and it is a familiar rule of construction that the legislature, in adopting the statute of another state, adopts along with it the judicial construction of that state, as understood at the time.
In Wheeler v. Farmer, 38 Cal. 215, the supreme court of California had the precise question presented here before it, and Justice Sprague, in passing upon the question, said: “ Under our statute, it is the duty of the court in which the suit is commenced to issue the writ upon the filing by the plaintiff of an affidavit stating the ultimate facts in the language of the statute, together with an undertaking in amount and form as defined by statute. Upon such compliance with the statute, the plaintiff demands as a right the issuance of the writ, and in issuing the writ the clerk has no discretionary power. He but performs a ministerial duty in obedience to a plain statutory mandate.” He then proceeds to comment on the New York authorities cited, holding that they are inapplicable to their statute. That in New York, to authorize the issuance of the writ, both under the revised statutes and the code, a state of facts had to be shown to the satisfaction of a judicial officer to whom the application was made. And in Weaver v. Hayward, 41 Cal. 117, on the same question being presented to the court, it was held that “ the affidavit for an attachment need not
The judgment off the court below is affirmed as to the overruling of the demurrer to second defense, and reversed as to first defense. It is therefore ordered that this cause be remanded to the court below for further proceedings.
