Holmes v. Ohm (1863) · DecisionDepot

Holmes v. Ohm

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1863Published

Before: Crocker

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Holding. The court held that an allegation of filing an undertaking on appeal in the clerk's office is sufficient to state a cause of action, as the statute does not require delivery to the obligee.

Issues

Whether a complaint on an undertaking on appeal must aver delivery to the obligee to be sufficient.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“These undertakings are not required by the statute to be delivered to the obligee when executed, but to be filed in the Clerk’s office, for the use and benefit of the parties entitled to them.”

Synopsis

Hr an action on an undertaking on appeal, it is a sufficient averment of the delivery of the undertaking, if the complaint show that it was filed in the Clerk's office.

Crocker, J. delivered the opinion of the Court—Norton, J. concurring.

This Is an action upon an undertaking on appeal. The defendants demurred to the complaint, on the ground that it did not aver any delivery. The complaint avers that the defendants executed the undertaking sued on, copying the same in full into the complaint, with the indorsement thereon, showing that the undertaking was filed in the Clerk’s office on the twenty-seventh day of March, 1862. This is clearly sufficient to entitle the plaintiff" to recover thereon. These undertakings are not required by the statute to be delivered to the obligee when executed, but to be filed in the Clerk’s office, for the use and benefit of the parties entitled to them.

The judgment is therefore affirmed.

Holmes v. Ohm

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