Simpson v. McCarty

Beatty, C. J. — This is an appeal from an order overruling a motion to dissolve, vacate, and set aside a writ of attachment. The grounds of the motion were: 1. That the affidavit did not conform to section 538 of the Code of Civil Procedure, in that it did not state whether the debt was upon an implied or an express contract; 2. That it did not appear whether the affidavit was made upon knowledge, or upon information and belief; 3. That it did not appear that the affidavit was made by or on behalf of the plaintiffs; 4. That the attachment was improperly issued, because the affidavit neither stated whether the contract sued on was express or implied, nor stated facts from which it could be ascertained whether the contract was express or implied; 5. That it did not appear whether the undertaking was made and entered into before or after suit brought; 6. That the undertaking was in the alternative. The portion of the affidavit called in question was in the following language:—

“[Title of court and cause.]

“ State of California, county of San Joaquin, ss.

“J. M. White, being duly sworn, says: That he is the agent and salesman of the plaintiffs in the above action; that the defendant in the said action is indebted to them in the sum of $1,295.75, gold coin of the United States, over and above all legal set-offs and counterclaims, upon an account stated, a contract, for the direct payment of money, etc.”

That portion of the undertaking to which objection is made reads thus:—

“ [Title of court and cause.]

“Whereas, the above-named plaintiffs have commenced, or are about to commence, an action,” etc., dated this seventh day of February, 1888.

[178]The objections to the undertaking have not been urged here.

As to the affidavit, we think there is no force in the second or third of the objections specified as grounds of the motion.

The statute does not require the affiant to state whether his averments are based upon direct knowledge, or upon information and belief, and when, as here, the facts are stated positively without qualification, it will be implied that they were within the knowledge of the affiant.