Hamburger v. Halperm

RICHARDS, J.

This is an appeal from an order dissolving an attachment. The complaint alleged that the defendant on March 1, 1913, had engaged plaintiffs as exclusive selling agents for his goods in California and several other states, agreeing that the plaintiffs should be entitled to seven and one-half per cent commission on all sales, however made, in New York or in the specified states, and that the contract of employment should remain in force for one year. The breach complained of was the alleged termination without cause of the plaintiffs’ agency in the month of August of that year, by which the plaintiffs were damaged in the loss of estimated commissions in the sum of one thousand eight hundred and ninety dollars. Upon filing this complaint the plaintiffs presented their affidavit and undertaking on attachment, and a writ was issued and executed upon property

[318]

of the defendant in this state. Thereafter the defendant gave notice of a motion to dissolve this attachment upon the ground, among others, that the plaintiffs’ affidavit for attachment omitted to state that the defendant was a nonresident of the state of California. The plaintiffs responded with a counter-motion for leave to amend their affidavit in this respect. The court granted the plaintiffs’ motion, and they thereupon filed an amended affidavit, expressly averring the nonresidence of the defendant, and in all other respects complying with section 538 of the Code of Civil Procedure. Thereafter the defendant’s motion to dissolve the attachment was submitted to the court for decision, and the court made its order granting said motion.

We think the court was in error in granting the defendant’s motion to dissolve this attachment upon the ground of the defect in the affidavit upon which it was issued. It is true that the original affidavit was defective in failing to expressly state that the defendant was a nonresident of this state, but we are of the opinion that this omission was remediable by an amendment in view of the provisions of section 558 of the Code of Civil Procedure as the same was amended in 1909.

(Fairbanks

v.

Getchell,

13 Cal. App. 458, [110 Pac. 331];