54 Cal. 329 | Cal. | 1880
The plaintiff, after alleging in his complaint that he was, at all the times therein mentioned, the owner of certain specified
The complaint was demurred to, on' the grounds that it did not state facts sufficient to constitute a cause of action, and that the cause of action was barred by subdivision 1 of § 339 of the Code of Civil Procedure. The demurrer was overruled, and the defendant answered. In his answer, the defendant alleged, among other things, that the action was barred by the provision of the Code referred to in his demurrer. It was
The Court, in its instructions to the jury, stated “ that there were two causes of action set forth in the complaint, one in the form of malicious prosecution of an attachment, and the other on an attachment bond.” The Court further instructed them as follows : “ There is also a plea of the Statute of Limitations. It is contended that the attachment sued out in the Third District Court, which is the foundation of this action, was released on the 12th day of October, 1875, which is two years and eighteen days before this action was commenced. If you find that to be the case, then, so far as malicious prosecution is concerned, you will find for the defendant.”
The plaintiff testified on the trial, that the attachment was released and finally dissolved on the 12th day of October, 1875, and the defendant afterward introduced and read as evidence an order of the Third District Court of that date, discharging the attachment in said action of Morris v. Sharp. As there does not appear to be any conflict of evidence upon that question, it would seem that under the charge of the Court the jury should have found for the defendant upon that issue. We are not, however, prepared to adopt the views of the Court as to the number of causes of action united in the complaint. It is quite clear that two causes of action are not separately stated in it, and equally clear, we think, that if there are two contained in it, no court can determine where the statement of one ends or of the other begins. We are not called upon to affirm or deny that the complaint contains words which, if properly arranged, might state two causes of action. But it does seem to us that as now arranged, they state, what they were intended to state, one cause of action, and that is not upon the undertaking. The gravamen of the complaint is, that the defendant maliciously procured an attachment to be issued against and levied upon the plaintiff’s property, in an action in which the defendant was not a party of record. In narrating what the defendant did in connection with the issuing and levying of the writ, it is stated, among the other steps which were necessarily
We do not doubt that the first impression of the Court was correct, and that the last was erroneous. From which it follows, that the action was barred by the Statute of Limitations; and as the verdict under said instruction was in favor of the plaintiff, the defendant’s motion for a new trial should have been granted, on the grounds that the Court erred in charging the jury that the complaint contained two causes of action, one of which was a cause of action upon the undertaking upon attachment; and that the evidence conclusively proved that the only cause of action stated in the complaint was barred by the Statute of Limitations.
Judgment and order denying a new trial reversed.
Thornton, P. J., and Myrick, J., concurred.