Sparks v. Bell

CHIPMAN, C.

Motion to discharge writ of attachment. Defendants appeal from the order denying their motion. The complaint contains two counts: 1. Alleging that within two months before the commencement of the action plaintiffs sold and delivered to defendants certain mineral ores of the value of $25,000; and 2. That within the same time defendants received, and had,, to and for the use of plaintiffs, $25,000. The complaint was verified by one of plaintiffs’ attorneys, Mr. Soto, who also made affidavit that “the above-named defendants are all non-residents” of this state; averred the indebtedness “upon a contract for the direct payment of money,” and upon this affidavit and a bond a writ of attachment was issued. In the complaint and attachment papers the defendants were named as Charles Bell, W. A. Fleet, Thomas Dougherty, Thomas Ford, John Doe, and Richard Roe, the last two being fictitious names. Thomas S. Ford made and filed his affidavit in support of the motion, stating “that he is the same person designated in the complaint in said action as Thomas Ford”; affiant further states that W. A. Sleep .is one of the defendants in said action, and “that said defendant has been erroneously designated therein as W. A. Fleet.” Affidavits were also filed by Charles B. Bell and Thomas Dougherty, stating that affiants are defendants in said action, and “that said Charles B. Bell is the same person designated in the complaint in said action as Charles Bell, and that W. A. Sleep is one of the defendants in said action, and that said defendant has been erroneously designated therein as W. A. Fleet, and that Thomas S. Ford is the same person designated in the complaint in said action as Thomas Ford. Affiants further averred in these affidavits “that defendants Thomas S. Ford and W. A. Sleep reside, and for more than twenty years last past have resided, in Nevada County, state of

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California; that said Thomas S. Ford has been district attorney of said Nevada County, state of California, and that said defendant Thomas S. Ford and the defendant W. A. Sleep are, and were at the time of the commencement of this action and long prior thereto, attorneys at law, practicing their profession in Nevada County, state of California, and that said defendants were, at the time of the commencement of this "action, known to J. W. Dorsey, one of the attorneys for the plaintiffs herein. ’ ’ Affiants deny that defendants are, or that either of them is, indebted to plaintiffs in any sum whatever on contract, as alleged in-the complaint, or otherwise or at all; also, specifically deny each allegation of the complaint; aver that affiants were in the city and county of San Francisco from the commencement of the action, July 25, 1901, until July 31, 1901, but summons was not served upon any of defendants herein, and aver, on information, that said attorney Dorsey knew affiants were in said city during said time; aver that the action was not brought in good faith by plaintiffs or either of them, but was brought and said writ of attachment was caused to be issued by plaintiffs for the purp'ose of hindering or harassing defendants. The notice of motion stated that Charles B. Bell (sued as Charles Bell), W. A, Sleep (sued as W. A. Fleet), Thomas Dougherty, and Thomas S. Ford (sued as Thomas Ford), “appearing specially for the purpose of this motion, and not otherwise, will . . . move . . . for an order vacating . . . the writ of attachment . . . on the grounds” that the writ was improperly and irregularly issued; ‘ ‘that the affidavit of R. M. F. Soto, upon which said writ of attachment was issued, is untrue, ’ ’ in stating that all the defendants are non-residents, etc., whereas the said Ford and Sleep are, and have been, residents of this state for more than twenty years, giving residence; also; that said affiant states that defendants are indebted to plaintiffs, etc., whereas none of defendants are so indebted, or indebted at all, to plaintiffs upon contract or otherwise. Plaintiffs filed no counter-affidavits. The affidavits did not state that either the writ or the summons had been served, or that defendants had property subject to attachment. By not denying Soto’s affidavit in that regard it is admitted that defendants Bell and Dougherty are non-residents.