Marshall v. Popert

THE COURT.

The facts in this ease are, in all essential features, like the ease of

Marshall

v.

Wentz,

(No. 1388),

ante

p. 540, [153 Pac. 244], in which an opinion was filed October 8, 1915.

Upon the authority of that case the judgment is affirmed.

A petition for a rehearing of this cause was denied by the district court of appeal on November 10, 1915, and the following opinion then rendered thereon:

[552]

THE COURT.

In this case a decision was filed, on October 11, 1915, as follows: “The facts in this case are, in all essential features, like the case of

Marshall

v.

Wentz,

(Civ. No. 1388),

ante,

p. 540, [153 Pac. 244], in which an opinion was filed October 8,1915. Upon the authority of that case the judgment and order are affirmed. ’ ’

We are satisfied with the above decision and opinion except in one particular. As counsel in his petition points out, it is true that the record in this case differs from the record in the Wentz case in this: In the Wentz case there was no amended answer and the motion for judgment on the pleadings was granted upon the complaint and answer. In this case, before the motion for judgment on the pleadings was granted, the original answer had been stricken out and an amended answer filed, and, as counsel says, at the time the motion for judgment was granted the original answer, having been stricken out, could not be considered.

The point becomes material in this: In the Wentz case the answer alleged the insolvency of the corporation and in our opinion, in considering the claim made that the complaint did not show that the judgment of the plaintiff against the corporation had not been paid, it is said: “It is the duty of the court to examine the entire record to determine whether prejudicial error has been committed. The defendant’s verified answer is a part of the record and may be considered. The complaint shows execution issued and returned unsatisfied a short time before bringing this action and the defendant in his answer alleges: ‘ That at the time the plaintiff obtained said alleged judgment against said California Corporation that the said California Corporation was insolvent and had many creditors and was unable to pay said creditors. ’ Taking the whole record together, it appears with sufficient certainty that plaintiff’s judgment has not been paid, that plaintiff tried to collect it by execution and could not, and that the corporation has been at all times since it was rendered, insolvent and unable voluntarily to pay it, ’ ’ and in support of this view authorities are cited.