Fisk v. French

114 Cal. 400 | Cal. | 1896

Vanclief, J.

Appeal from an order discharging an attachment in an action on four promissory notes—the first for $30, dated December 5, 1891; the second for $40, dated March 25, 1892; the third for $100, dated April 12, 1892; and the fourth for $238.58, dated November 17, 1892—the first and last two drawing compound interest at the rate of three per cent per month and the second like interest at rate of two and a half per cent per month. Neither the substance nor legal effect of any one of the notes was stated in the body of the complaint, but a copy of each note was attached to the complaint and therein referred to as an exhibit. Immediately under the note of November 18, 1892, for $238.58, was written an assignment by defendant to plaintiff of one hundred shares of “ Belcher Mining Stock// “ as collateral security for the payment” of the last-mentioned note, and an authorization of plaintiff to sell the stock at public or private sale, with or without notice, in case of default in payment of principal or interest of that note, and to apply the net proceeds of the sale to the payment of the last-mentioned note, and the surplus, if any, to the payment of any other obligations of defendant to plaintiff which might be held by the latter at the time of such sale.

The following is a copy of the affidavit for attachment:

“Asa Fisk, being duly sworn, says: That he is the plaintiff in the above-entitled, action; that the defendant, J. B. French, in the said action is indebted to the plaintiff in the sum of three hundred and seventy-six and Tso%- dollars, gold coin of the United States, over and above all legal setoffs and counterclaims, upon an express contracts, for the direct payment of money, to wit, four promissory notes, and that such, contracts were made and are payable in this state, and that the payment of the same has not been secured by any mortgage or lien upon real or personal property, or any pledge upon personal property.

“That the said attachment is not sought,and the said action is not prosecuted to hinder, delay, or defraud any creditor or creditors of the said defendant.

“ Asa Fisk.”

After the writ of attachment had been issued and levied, defendant moved, on the complaint, affidavit for attachment, and other papers on file, to discharge the attachment, upon the ground that the affidavit, upon which the attachment was issued, is false in the statement therein that the payment of the notes had not been secured by any mortgage, lien, or pledge upon -personal property; and is otherwise insufficient in that :it does not state that the collateral security appearing t>n the face of the complaint had become valueless without any act of the plaintiff, nor even allude to that security.

When the motion to discharge the attachment came on to be heard, the plaintiff, by leave of the court, amended the fourth count of his complaint (founded on the note dated November 17, 1892), by substituting for ¿he second paragraph thereof the following:

■“ 2. That plaintiff has ever since been, and now is, 'the owner and holder of the said note. That to secure the payment of the said sum of $238.58, and the interest thereon according to the terms of said promissory note, the said defendant did, on the seventeenth day of November, 1892, assign and transfer to said plaintiff one hundred shares of the capital stock of the Belcher Mining Company, with full power and authority in said plaintiff to sell the stock at any time after the note became due, without notice to said defendant, at public or private sale at plaintiff’s option, and to apply the net proceeds of the said sale of said stock to the payment of the said principal sum and the interest thereon according to the terms of the note. That after the said principal sum and interest became due, and on, to wit, the seventeenth day of February, 1893, the said plaintiff, under the said authority and power, sold the said capital stock so pledged to him as aforesaid by said defendant, and realized from the said sale the sum of $74 net; and the said plaintiff applied the sum of $74 in payment of the interest then due, amounting to $14.62, and the balance thereof, amounting to $59.38, on said principal.

“That the interest has been paid on the said note to February 17,1893, and the sum of $59.38 has been paid on account of the principal of the said note, and that no other payments have been made on the said note, and the sum of $179.20 of the principal of said note, together with the interest thereon from the seventeenth day of February, 1893, is now due, owing, and unpaid by defendant to plaintiff.”

I think the court did not err in discharging the attachment. The amendment of the complaint did not supply or cure the defects in the affidavit for the attachment; but, on the contrary, incontestably proved that it was false in the material statement that the payment of the notes had not been secured by any mortgage, lien, or pledge upon personal property, and that it was fatally deficient in that it failed to state that the security had become valueless. What the statute requires to be stated in the affidavit must be stated, and truly stated, in the affidavit; and, if not stated in the affidavit, the attachment should be dissolved, even though the requisite facts, omitted in the affidavit, are alleged in the complaint. Complaints on contracts for the direct payment of money generally and necessarily state nearly all the facts required to be stated in an affidavit for attachment in actions on such contracts; yet the statement of such facts in the complaint alone does not satisfy the requirement of the statute that they must be expressly and directly stated in the affidavit for an attachment. The case of Hathaway v. Davis, 33 Cal. 168, has no bearing on the question under consideration. In that case there was no pretense that the affidavit was defective in any respect.

If the views above expressed are correct, it is unnecessary to consider the other questions argued by counsel.

I think the order should be affirmed.

Searls, 0., and Belcher, C., concurred.

For the reasons given in the foregoing opinion the order is affirmed..

Harrison, J., Van Fleet, J., Garoutte, J.