Berri v. Rogero

SULLIVAN, C. J.

Appeal from an order setting aside default and vacating judgment.

Plaintiff, Bernardo Berri, sued Maria Rogero and Pietro Rogero to recover one thousand dollars for alleged malicious

[738]

acts of Maria Rogero and malicious prosecution by her of a civil action. The facts alleged in the complaint and out of which the cause of action arose are, in brief, as follows: Berri had commenced an action against Pietro Rogero in the justice court of San Francisco to recover two hundred dollars on Pietro’s promissory note; a writ of attachment was issued in the case, and a levy was made by the sheriff upon one computing scale and one cash register in the possession of Pietro. In his complaint against the defendants herein the plaintiff alleged that Maria Rogero, maliciously intending and contriving to annoy and injure plaintiff and without probable cause, claimed the property attached as her own, thereby compelling Berri to furnish the sheriff an indemnity bond in the sum of five hundred dollars to hold the levy. He further alleged that thereafter Maria Rogero maliciously and without probable cause, in her individual capacity, and as guardian

ad litem,

of four infants, brought an action against himself and the sheriff for the recovery and possession of the property attached, or the value thereof—two hundred dollars—in case delivery could not be had, and fifty dollars damages. This action, it is alleged, terminated in favor of Berri and his codefendant, the sheriff. By reason of the aforesaid acts, Berri claimed in his complaint that he “was greatly annoyed and was caused great inconvenience and much loss of time and put to considerable money outlay in defending said actions of defendant herein, Maria Rogero,” to his damage in the sum of one thousand dollars, for which amount he prayed judgment against both defendants. No cause of action whatever is alleged in the complaint against Pietro. He is not charged with any wrongful act, but, as stated by plaintiff in his complaint, “all of the aforesaid acts were done by the defendant Maria Rogero maliciously, without probable cause, etc.” From the affidavits used on motion to set aside the default it appears that Pietro is the husband of Maria, but the plaintiff did not in his complaint allege that fact, nor did he allege any fact from which the relation of husband and wife between defendants could be inferred. The complaint was verified. The summons in the action was duly served on defendants in April, 1911. After time to plead had been repeatedly extended, the defendants, on the thirty-first day of May, 1911, by their attorney, filed an unverified answer to the complaint, containing a general denial and nothing