| Cal. | Jul 1, 1858
This is an action upon an undertaking executed by the defendants, as sureties, on an appeal from a judgment recovered by the plaintiff, in the Superior Court of the city of San Francisco. To the answer the plaintiff demurred. The demurrer was sustained, and judgment rendered for the plaintiff, from which the defendants appeal, and contend: first, that the complaint is defective in substance, and that, upon demurrer, judgment should be rendered against the party committing the first error, if the defect be one of substance; second, that the answer is sufficient to raise an issue; third, that the undertaking ivas void, in not being executed by the appellant as well as the sureties ; and fourth, that the Superior Court of the city of San Francisco had no jurisdiction to render the judgment appealed from, which was for two thousand two hundred and fifty dollars.
It is unnecessary to determine whether, upon a demurrer under our system of practice, judgment should be given against the party committing the first error, when the defect is one of substance, as wo think the objection of the appellant to the complaint, that it does not aver a good and sufficient consideration for the undertaking, is untenable. The allegation that the undertaking ivas executed for the purpose of perfecting the appeal and staying the execution of the judgment, followed by the allegation as to the hearing and determination of the appeal by the Supreme Court, brings the ease within the principle of the decision in Palmer v. Melvin, (6 California R., 651.) In that case, the undertaking was executed for the purpose of releasing property from attachment, and the complaint was held defective in not alleging that the property attached ivas released upon the execution and delivery of the undertaking. It did not appear that any action was taken on the undertaking after it was given. In the present case, no such defect exists in the complaint. The proceedings on the appeal show subsequent action on the undertaking; and its amount ivas sufficient, under the statute, to render the appeal effectual and to stay the execution of the judgment.
The answer was clearly demurrable. The complaint is verified, and the answer does not deny any of its material allegations, either positively or upon information and belief. There
These forms cannot be indiscriminately used. If the facts alleged in the complaint are presumptively within the knowledge of the defendant, he must answer positively; and a denial upon information and belief, will be treated as an evasion. Thus, for example, in reference to instruments of writing alleged in a complaint to have been executed by the defendant, a positive answer will alone satisfy the requirements of the statute. If the defendant has forgotten the execution of the instruments, or doubts the correctness of their description or copy in the complaint, he should, before answering, take the requisite steps to obtain an inspection of the originals. (Practice Act, § 446.) If the facts alleged in the complaint are not personally within the knowledge of the defendant, he must answer according to his information and belief.
In no case, can an allegation of the complaint be controverted by a denial of sufficient knowledge or information upon the subject to form, a belief. By the forty-sixth section of the Practice Act, as originally passed in 1851, it was provided, that an allegation of the complaint might be controverted by a denial “of any knowledge thereof sufficient to form a belief.” In practice, this mode of denial was found to furnish a convenient pretext for evading the statute. In some instances, defendants became critical in their judgments, as to the extent of knowledge sufficient to form a belief, and would, without hesitation, deny, in that form, facts, upon the existence of which they did not hesitate to act in other matters. In 1854, the forty-sixth section was amended to the present language, and the wisdom of the amendment is well illustrated by the present case. The complaint alleges the recovery of a certain judgment in the Superior Court. The defendants executed an undertaking on appeal, reciting this judgment, and containing the usual covenant for its payment by the appellant, and damages and costs in case of affirmance by the Supreme Court, and yet, in their answer, they aver that “ they have not sufficient knowledge or information to form a belief” whether any such judgment was rendered.
The denial of any indebtedness, without a denial of any of the facts from which that indebtedness follows, as a conclusion of law, raises no issue.
An undertaking on appeal is an independent contract on the part of the sureties, in which it is not necessary that the appellant should unite. He is already bound by the judgment, and no purpose could be served by his joining with the sureties.
Whether the Superior Court of the city of San Francisco had jurisdiction under the Constitution to render a judgment over two hundred dollars, is not at this day an open question. On the principle of stare decisis, we must hold that the Court possessed the jurisdiction, under the Constitution, to render the judgment in question.
Judgment affirmed.