Peterson v. Nesbitt

HALL, J.

Plaintiff brought this action against the defendant, who is the sheriff of Monterey county, to recover damages for allowing the escape of one Marcelin Cartier, who had been arrested upon mesne process in a civil action, brought by this plaintiff against said Marcelin Cartier. At the trial plaintiff offered in evidence the affidavit upon which the order of arrest had been made, but upon objection of defendant the court refused to admit it in evidence, and as a result plaintiff was unable to prove her case, and at the close of her testimony the court granted defendant’s motion for a nonsuit. The appeal is from the judgment of nonsuit entered in accordance with this order.

The only question to be determined is as to whether or not the court erred in sustaining defendant’s objection to the introduction of the affidavit for the order of arrest.

The correctness of the ruling of the court depends upon whether or not the affidavit upon which the order of arrest was based was sufficient to invest the court with jurisdiction to make the order. The statute (Code Civ. Proc., sec. 481) provides that: ‘ ‘ The order may be made whenever it appears to the judge, by the affidavit of the plaintiff, or some other person, that a sufficient' cause of action exists, and that the

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case is one of those mentioned in section four hundred and seventy-nine. The affidavit must be either positive, or upon information and belief; and when upon information and belief, it must state the facts upon which the information and belief are founded.”

Several objections are urged as to the sufficiency of the affidavit, the first of which is that it does not appear from the affidavit that a sufficient cause of action existed. In this regard the affidavit, which was made by the attorney for the plaintiff in the original actions, states: “That a good and sufficient cause of action exists in favor of the said plaintiff and against the defendant in said action, for the sum of twenty-seven hundred and five dollars for the wrongful conversion of certain property"belonging to the estate of Michel Cartier, deceased, as fully appears from the verified complaint on file herein, which said complaint is in words and figures as follows, to wit.” Then follows a copy of such complaint.