Carter v. Paige

California Supreme Court Sep 3, 1889 No. No. 12637Published

Before: Beatty

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Holding. The court held that the amended complaint sufficiently alleged a final judgment to support a cause of action for malicious attachment, and that it was unnecessary for the plaintiff to further allege that the judgment remained in full force and effect.

Issues

Whether the amended complaint sufficiently alleged a final judgment to support a cause of action for malicious attachment.
Whether a plaintiff must affirmatively allege that a judgment is not vacated, set aside, reversed, or appealed from when pleading a judgment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It was not necessary, after alleging the giving and entry of the judgment, to allege further that it was in full force and effect, and not vacated, set aside, reversed, or appealed from.”

“We think the amended complaint was sufficient to sustain the judgment, and the judgment is affirmed.”

Synopsis

Malicious Attachment—Final'Judgment—Pleading—Dissolution of Attachment — Date of Cause of Action. — When the complaint in an action for damages for a malicious attachment upon a debt that had been paid before the attachment suit was commenced alleges that judgment was rendered and entered in favor of the defendant in the attachment suit, such allegation is sufficient, and it is unnecessary to allege further that the judgment was in full force and effect, and not vacated, set aside, reversed, or appealed from. If the judgment is for any reason no longer in force, that fact should be alleged by the defendant in his answer. An allegation in the complaint that the judgment was not appealed from within five days, intended to show the final dissolution of the attachment, may be treated as surplusage, with reference to the finality of the judgment, and is not an admission that the judgment was appealed from after five days. It seems that in such case the cause of action dates from the final judgment, and not from the dissolution of the attachment; but this question is not decided.

Appeal — Judgment Boll — Order Allowing Amendment to Complaint — Irregularity —■ Judgment by Default. — On an appeal from a judgment by default, taken upon the judgment roll alone, the fact that an amended complaint was not filed within the time allowed by an order permitting the amendment cannot be considered, as the order allowing the amendment is no part of the judgment roll. That fact, if existing, constitutes a mere irregularity, which can only be reviewed upon a record made upon a motion to set aside the judgment, and on appeal from an. order denying the motion.

Beatty, C. J. In this cause there were so many motions and proceedings to dismiss the appeal, amend the record, etc., preliminar)7 to the hearing on the merits, and so many printed arguments were filed by counsel," that the court cannot be severely blamed for having [391]overlooked one of the additional and supplemental briefs filed on the part of the appellant. When the case was taken up for decision we considered the single point made by appellant in his points and authorities, and pronounced the opinion reported in 20 Pac. Rep. 729. Our attention being called to the fact that we had neglected to notice a point made in a supplemental brief filed by appellant under leave of the court, a rehearing was granted in order that we might consider that point.

The suit is for damages for the malicious levy of an attachment by the defendant upon lands of the plaintiff. The complaint shows that the attachment suit was upon a promissory note not alleged to have been secured by mortgage or otherwise, and shows, consequently, that defendant had an undoubted right to an attachment if there was anything due on the note. But it is alleged that the note had been paid before suit brought, and that the malice of defendant consisted in suing and attaching when he knew that his debt had been paid. It is clear from all the allegations of the complaint that the question of malice or no malice in issuing the attachment depended entirely upon the further question whether the defendant had a right of action,—whether, in other words, his note had been paid.

This being so, defendant contends, in support of his appeal from the judgment entered against him by default, that the amended complaint is not sufficient to support the judgment, because, as he claims, it does not show that a final judgment was given or entered against him in the attachment suit before this action was commenced.

The allegations of the complaint on this point are as follows:—

“That thereafter, to wit, on the eighth day of December, 1880, said cause came on for trial in the said superior court of the county of Stanislaus, state of California, in which court said action was then duly pending, and [392]upon said trial judgment was duly given, made, and entered in favor of this plaintiff (the defendant therein), and against this defendant (the plaintiff therein), which said judgment was duly entered and recorded in the judgment-book of said court, in volume 1, at pages 831 and 832, and no appeal was taken from said judgment within five days after the entry thereof, and no bond or undertaking was given to continue said attachment in force, and because and by reason thereof said attachment became and was dissolved and discharged by said judgment.”

Carter v. Paige

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