110 P. 331 | Cal. Ct. App. | 1910
This is an appeal from an order denying defendant's motion to discharge an attachment.
On May 6, 1910, an opinion was filed herein whereby the ruling of the trial court in denying defendant's motion to discharge an attachment was reversed. In that opinion the court overlooked section 558, Code of Civil Procedure, as it was amended in 1909 (Stats. 1909, p. 253), and in the absence of anything to the contrary being said by respondent, whose attorney it appears did not deem the case of sufficient importance to warrant him in filing points and authorities, or otherwise to offer any suggestions touching the points involved, it accepted appellant's contention based uponWinters v. Pearson,
Defendant's motion for the discharge of the attachment was made upon the ground that the writ of attachment was improperly and irregularly issued. (Code Civ. Proc., sec. 556.) The irregularity is said to have consisted of the alleged fact that the writ of attachment was issued without the affidavit required by the provisions of section 538, Code of Civil Procedure.
As appears from the record, there was filed with the clerk on July 21, 1909, the date of the issuance of the writ of attachment, what purported to be an affidavit of plaintiff's agent. This document contained the title of the court and cause with the venue laid in the county of Kern, state of California, together with a statement of facts entitling plaintiff to the issuance of the writ. It was not subscribed by affiant, but had attached thereto the jurat of the notary as follows: "Sworn to before me this 21st day of July, 1909, W. W. Kaye, Notary Public." As shown by the affidavit and jurat, affiant appeared before the notary in Kern county and made oath to the affidavit. Kaye, however, when upon the witness-stand testified as follows: "I am the attorney for the plaintiff herein and am a notary public in and for the county of *461 Kern. That is my signature which appears to the jurat on the affidavit for attachment filed in this court on July 21, 1909. Mr. Chas. A. Meyer, whose name appears in the body of said affidavit, was not in Bakersfield on that date. He lives in Los Angeles and was in Los Angeles on that date. I called Mr. Meyer up in Los Angeles on that date over the telephone and he made oath to the matters contained in the affidavit. He related the facts contained in the affidavit and under oath stated to me that they were true. I am well acquainted with Mr. Meyer and recognized his voice over the telephone."
Appellant contends that the affidavit was made in Los Angeles county, and that W. W. Kaye, the notary, having been appointed in and for the county of Kern, state of California, had no authority to act officially as such notary in the county of Los Angeles.
To justify the issuance of the writ there must be received by the clerk an affidavit by or on behalf of the plaintiff. It is not necessary that the affidavit be signed by the party making it. (Ede v. Johnson,
Furthermore, he is required to keep an official seal upon which, among other things, must be engraved the name of the county for which he is commissioned. (Pol. Code, subd. 7, sec. 794.) All these provisions are inconsistent with the view that the legislature intended the jurisdiction of a notary to be coextensive with the state.
As appears from the record, the oath was administered by communication had between the notary and affiant over the telephone, and appellant contends that the act was void and of no effect for this reason. Such contention finds direct support in the case of Sullivan v. First Nat. Bank, 37 Tex. Civ. App. 228, [
At the time he made the affidavit and assented to the obligations of the oath, Meyer, the affiant, was in the county of Los Angeles. His act signifying his assent to the obligation must be deemed to have been had and done in Los Angeles county, where he then was. If untrue, it could not be claimed that he committed an act in swearing to a false affidavit in the county of Kern upon which a prosecution for perjury could be predicated, for the reason that it clearly appears he was not in Kern county when the act was committed. The oath was administered by a notary commissioned for Kern county to an affiant conceded to have been at the time in Los Angeles county, and the notary being vested with no authority to administer an oath in Los Angeles county, it necessarily follows that the act was a nullity, and the purported affidavit upon which the attachment was issued was void and of no effect. *463
At the hearing of the motion there was presented and filed what is termed an amended affidavit, which is in proper form and sufficient in substance to justify the issuance of the writ of attachment.
Section 558, Code of Civil Procedure, as amended in 1909 (Stats. 1909, p. 253), provides that, notwithstanding the fact that the writ of attachment is improperly or irregularly issued, nevertheless, it shall not be discharged "if at or before the hearing of such application the . . . affidavit . . . upon which such attachment was based shall be amended and made to conform to the provisions of this chapter." Prior to the enactment of this amendment the affidavit for attachment could not be made the subject of an amendment under the laws of this state. (Winters v. Pearson,
We think the court erred in its ruling, and the order denying defendant's motion to discharge the attachment is, therefore, reversed, with direction to the lower court that it make its order granting the same.
Allen, P. J., and Taggart, J., concurred.