Buell v. Dodge

McKee, J. On moving for an order to change the place of trial in this case, defendant filed an affidavit in which he affirmed that he had stated “ the case,” to his counsel, who advised him that he had a meritorious defense to the same. Objection was made that the affidavit was insufficient as an affidavit of merits, because it did not appear from it that the defendant had stated to his counsel the facts of the case.”

In Nickerson v. The California Raisin Company, 61 Cal. 268, the party moved on an affidavit which contained the statement that he had fully and fairly stated his defense in the action. That [554]was held to be insufficient, and we said: An affidavit of merits “must show that the defendant has fully and fairly stated the facts of the case to his counsel, before the advice of the latter could amount to a primafacie showing of merits on defendant’s behalf.” Upon that as the correct rule of law it is contended that the affidavit in this case ivas insufficient, and that the order changing the place of trial was erroneous.

But a statement of the “ case ” is the equivalent of the statement of the facts of the case. “Case” is defined to be a question contested before a court of justice in an action or suit at law or in equity. (Bouv. Law Dic. “ Case.”) The primary meaning of the word, says the Supreme Court of New York, according to lexicographers, is cause. When applied to legal proceedings it imports a state of facts which furnishes occasion for the exercise of the jurisdiction of a court of justice. In this, its generic sense, the word includes all cases special or otherwise. (Kundolf v. Thalheimer, 12 N. Y. 596.) When, therefore, the defendant averred in his affidavit that he had made a statement of the case, for the purpose of obtaining the advice of his counsel, the expression necessarily imports that he had made a statement of the facts out of which the case had arisen.

The affidavit was sufficient.

Order affirmed.

Boss, J., and McKinstky, J., concurred.