Ralphs v. Burns

ALLEN, P. J.

The amended complaint filed in this proceeding alleged the incompetency of Dreher at all times mentioned therein, an adjudication thereof, and the regular appointment of plaintiff as guardian. Further, that in Aug-' ust, 1910, defendants procured Dreher to convey to them certain real estate described in the complaint at an agreed price of $2,634.50, and, in addition, to assign and transfer a certain mortgage, the amount of which is not disclosed, for . the consideration of two hundred dollars; that defendants paid to Dreher five hundred and ninety dollars in cash and executed to him five promissory notes each for $387.20, neither of which notes had matured at the commencement of the action. It is further averred that, as a part of the same trans-' action, defendants borrowed from Dreher $275, executing a promissory note therefor, which note appears to have matured at the commencement of the action. It is alleged that this conveyance and assignment was procured by fraud, the fraud alleged being a statement made by defendants and believed by Dreher, and upon the faith of which the conveyance and assignment were made, that the personal notes of the purchasers were security for the deferred payments. This is alleged to be false; that the notes had no value whatever. The prayer of the complaint was for the cancellation of the deed and assignment of mortgage, and such other relief as the court might deem proper in the premises. Plaintiff, upon the filing of such amended complaint, made an affidavit that the defendants were indebted to her as guardian in the sum of $3,150, over and above all legal set-offs and "counterclaims, upon an implied contract for the direct payment of money, to wit: the return of money and property on rescission of contract of sale, obtained fraudulently and no security was held therefor, etc. A writ of attachment was accordingly issued for the amount specified in the affidavit, which was levied upon the property of defendants. Defendants moved the court to dissolve the attachment for the reason that the cause of action

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under which plaintiff seeks relief does not come under the provisions of section 537 of the Code of Civil Procedure. This motion was denied, from which order denying the motion defendants appeal.

While it is true that where a sufficient affidavit is filed in an action upon an express or implied contract for the direct payment of money, even though the complaint be insufficient to state a cause of action, a subsequent amendment of the complaint not changing the character of the action may be allowed without affecting the order of attachment previously issued, yet the writ must state the amount of the demand in conformity with the complaint. The action in this case is not one for damages, but, on the contrary, only seeks to avoid the effect of the conveyance and assignment, and the only relief sought is equitable in its nature. Assuming that plaintiff was entitled to the relief sought the only implied agreement or contract which could serve as a basis for a money judgment would be the $37.50 alleged to have been paid for a certificate of title and record of deeds and this only through appropriate amendments to the complaint. The writ specified the amount demanded in the complaint to be $3,150. This variance being such a material departure from the requirements of the statute, vitiates the proceedings and renders the writ utterly void.