Curtis v. Richards & Vantine

Field, J., delivered the opinion of the Court—Terry, C. J., and Burnett, J., concurring. This is an action upon an undertaking executed by the defendants, as sureties, on an appeal from a judgment recovered by the plaintiff, in the Superior Court of the city of San Francisco. To the answer the plaintiff demurred. The demurrer was sustained, and judgment rendered for the plaintiff, from which the defendants appeal, and contend: first, that the complaint is defective in substance, and that, upon demurrer, judgment should be rendered against the party committing the first error, if the defect be one of substance; second, that the answer is sufficient to raise an issue; third, that the undertaking ivas void, in not being executed by the appellant as well as the sureties ; and fourth, that the Superior Court of the city of San Francisco had no jurisdiction to render the judgment appealed from, which was for two thousand two hundred and fifty dollars.

It is unnecessary to determine whether, upon a demurrer under our system of practice, judgment should be given against the party committing the first error, when the defect is one of substance, as wo think the objection of the appellant to the complaint, that it does not aver a good and sufficient consideration for the undertaking, is untenable. The allegation that the undertaking ivas executed for the purpose of perfecting the appeal and staying the execution of the judgment, followed by the allegation as to the hearing and determination of the appeal by the Supreme Court, brings the ease within the principle of the decision in Palmer v. Melvin, (6 California R., 651.) In that case, the undertaking was executed for the purpose of releasing property from attachment, and the complaint was held defective in not alleging that the property attached ivas released upon the execution and delivery of the undertaking. It did not appear that any action was taken on the undertaking after it was given. In the present case, no such defect exists in the complaint. The proceedings on the appeal show subsequent action on the undertaking; and its amount ivas sufficient, under the statute, to render the appeal effectual and to stay the execution of the judgment.

The answer was clearly demurrable. The complaint is verified, and the answer does not deny any of its material allegations, either positively or upon information and belief. There [38]are but two forms in which a defendant can controvert the allegations of a verified complaint, so as to raise an issue: first, positively, when the facts are within his own personal knowledge; and second, upon information and belief, when the facts are not within his own personal knowledge. (Practice Act, §46.)