A. P. Hotaling & Co. v. Brogan

CHIPMAN, P. J.

A writ of attachment issued in this case which, upon motion of defendant, was discharged on the ground that the affidavit required by section 538, Code of Civil Procedure, “is not properly or at all subscribed or sworn to on behalf of the said plaintiff.” Plaintiff appeals from the order.

The affidavit reads, giving the title of court and cause:

“State of California,

City and County of San Francisco.—ss.

“R. M. Hotaling of the plaintiff corporation in the action above named, being duly sworn, deposes and says: [Then follows statement of the indebtedness to plaintiff and other facts required by the statute]; and this deponent further says [then follow still further facts required to be stated]; that affiant is the duly elected, qualified and acting President of the plaintiff corporation, and makes the affidavit in its behalf.

“A. P. HOTALING & CO.

“By R. M. HOTALING, President.

“Subscribed and sworn to before me this 29th day of March, 1909.

“THOMAS S. BURNS,

“Notary Public in and for the City and County of San Francisco, State of California.”

Section 538, Code of Civil Procedure, provides that the clerk shall issue the writ of attachment, “upon receiving an

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affidavit by or on behalf of plaintiff.” All of the facts necessary to a sufficient affidavit appear in the body of the document here, leaving the sole question whether it sufficiently appears that the affidavit was made “by or on behalf of plaintiff. ’ ’

In judging of its sufficiency in the particular called in question we must refer to the entire affidavit. It plainly appears that R. M. Hotaling was, when he made the affidavit, the president of the corporation, and that he made it “in its behalf.” That he was the person sworn and the person who made the affidavit and deposed to the facts embodied in it clearly appears from the body of the document which the notary certifies was subscribed and sworn to. It was not necessary that the affidavit be signed.