44 Cal. 481 | Cal. | 1872
The judgment which Corbet obtained against Davenport must be deemed a judgment by confession. The time for answering had not expired and the judgment could not have been taken by default, and does not purport to have been a judgment of that character. On the contrary it was based upon a verified statement made by the defendant, consenting to the judgment, specifying the amount, and undertaking to state the subject matter of the indebtedness, as founded on a promissory note due from defendant to the plaintiff in " the action. It was clearly intended to be, and is, in its legal effect, a judgment by confession. This judgment is assailed on the ground: First—That the statement was insufficient in omitting to set forth with the requisite particularity the facts out of which the indebtedness arose, and it is insisted that for this reason, prima facie, it was fraudulent as to creditors of the judgment debtor; and second, that the judgment was fraudulent in fact, the defendant, as is alleged, being in no manner indebted to the plaintiff when the note was executed and the judgment confessed. The first point is well taken. The statement, in attempting to set out the facts out of which the indebtedness arose, only avers “that the defendant executed to said plaintiff a certain promissory
Order granting injunction reversed, and cause remanded.
Mr. Justice Bhodes did not express an opinion.