Bank of California v. Boyd

Thornton, J. — This appeal is prosecuted by defendant from an order refusing to dissolve a writ of attachment. It is urged that the affidavit on which the writ of attachment was issued was insufficient, and therefore the court below erred in its ruling. The insufficiency claimed is, that the affidavit does not show that the promissory note on which the indebtedness set forth has accrued, and which furnished the subject-matter for the issuance of the writ, was owned by the plaintiff.

We cannot concur in this contention. It does appear, with sufficient certainty, in our judgment, by the statements of the affidavit, that the plaintiff owmed the note. It is stated, in the first portion of the affidavit, that the defendants (naming them) are indebted to the plaintiff in a sum indicated, over and above all legal set-offs and counterclaims, upon an express contract, for the direct payment of money, viz., on. a certain promissory note, [388]which is described as being for twenty thousand dollars, dated March 14, 1887, payable May 13, 1887, made by the California Land and Timber Company to the order of Charles Kohler, and indorsed by defendants. Though, as argued on behalf of defendants, it is not stated that the note was indorsed by Charles Kohler to the defendants, or any one else, still, in our judgment, the manifest intendment of the language employed in the affidavit is, that the plaintiff was the owner of the note. It is distinctly stated, as mentioned above, in the initial portion of the paper, that the defendants are indebted to plaintiff on a promissory note. This could not be the case if it did not own the note. Nothing in the affidavit is inconsistent with the ownership of the note by the plaintiff, and all its statements are consistent with and tend to show such ownership.

In our opinion, the same particularity of statement showing title to the note in the plaintiff is not required in the affidavit for the issuance of the writ of attachment as in the complaint. It is sufficient if, by manifest intendment, the affidavit shows that the notéis the property of the plaintiff. It is not necessary that it should be shown by direct averment. The indebtedness to plaintiff is the principal element required in the affidavit, and when that appears by direct statement, and there is nothing in the affidavit inconsistent with such direct statement of indebtedness, the affidavit as to such indebtedness should, in our judgment, be held sufficient. Consistent with the views above expressed are Wheeler v. Farmer, 38 Cal. 215; Weaver v. Hayward, 41 Cal. 117; and Dunn v. Mackey, 80 Cal. 104, 107.