O'Conor v. Roark

California Supreme Court Jul 18, 1895 No. No. 19556Published

Before: Vanclief

AI Brief

AI-generated · verify before citing

Holding. The court held that the affidavit for the writ of attachment was sufficient, finding that it adequately identified the plaintiff's representative capacity, properly stated the indebtedness, and satisfied statutory requirements despite minor variations in phrasing.

Issues

Whether the affidavit sufficiently identified the plaintiff's representative capacity as receiver.
Whether the discrepancy between the principal amount in the affidavit and the demand for interest in the complaint rendered the affidavit defective.
Whether the use of the conjunction 'and' instead of 'or' regarding setoffs and counterclaims invalidated the affidavit.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The indebtedness to the 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.”

“the statute requires the affidavit to specify only the amount of the indebtedness, and not the amount of plaintiff's demand in the complaint”

“if it be sufficient to state that the amount of indebtedness is over and above either setoffs or counterclaims, it must be sufficient to state that the amount is over and above both setoffs and counterclaims.”

Synopsis

Attachment—Affidavit—Reference to Title of Action—Indebtedness to Plaintiff as Receiver.—An affidavit for attachment in a suit by a receiver of a national bank, in the heading of which the title of the action showing the representative character of the plaintiff as receiver is prefixed, but the body of which gives his name without his representative title and states “that he is the plaintiff in the above-entitled action,” and that the defendant “is indebted to him” in a specified sum, must be construed to mean that the affiant is the plaintiff named as receiver in the title of the action, and that the defendant is indebted to him as characterized in the title of the action: and the affidavit sufficiently complies with the requirement of section 538 of the Code of Civil Procedure that it shall show that the defendant is indebted to the plaintiff.

Id.—Particularity of Statement in Affidavit.—The same particularity of statement is not requ.red in an affidavit for the issuance of a writ of attachment as in a complaint.

Id. —Statement of Amount of Indebtedness—Variance.—The fact that the statement of the amount of indebtedness in an affidavit for attachment expresses only the principal sum, whereas the demand, as stated in the complaint and in the writ of attachment, is of the same principal sum with interest thereon from a specified date at the rate of seven per cent per annum, does not disclose a substantial variance between the affidavit, complaint, and writ in respect of the interest, where the nature of the indebtedness is sufficiently stated in the affidavit to show in legal effect that it draws legal interest'from the date of its maturity.

Id.—Construction of Statute—Statement of Amount in Affidavit.— The statute requires the affidavit for, attachment to specify only the amount of indebtedness, and not the amount of plaintiff’s demand in the complaint.

Id.—Exclusion of Setoffs ok Counterclaims—Conjunctive Statement. An affidavit stating conjunctively that the amount of indebtedness is “ over and above all legal setoffs and counterclaims,” is a sufficient compliance with the requirement of the statute that the indebtedness must be shown to he “over and above all legal setoffs or counterclaims.”

Vanclief, C. This appeal is from an order denying defendant’s motion to discharge and quash a writ of attachment issued in the above-entitled action, on the ground that the affidavit upon which the writ was issued is defective and insufficient. The following is a copy of the affidavit:

“IN THE SUPERIOR COURT OF THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA.

“Andrew J. O’Conor, being duly sworn, says that he is the plaintiff in the above-entitled action; that the defendant,.Ellen Roark, in the said action, is indebted to him in the sum of seven thousand seven hundred and [176]fifty dollars, over and above all legal setoffs and counterclaims, upon an express contract for the direct payment of money, to wit: An assessment and requisition of $100.00 per share upon the shareholders of the Consolidated National Bank of San Diego, levied and made October 25, 1893, by James H. Eckels, comptroller of the currency, under and by virtue of the laws of the United States of America, and against the defendant, Ellen Roark, as one of the stockholders in said bank, and who was, on June 21, 1893, and ever since has been, and now.is, the owner and holder of seventy-seven and one-half (77i) shares of the capital stock of said Consolidated National Bank of San Diego, and that the said defendant is a nonresident of this state.

“ That the said attachment is not sought, and the said action is not prosecuted, to hinder, delay, or defraud any creditor or creditors of the said defendant.

“Andrew J. O’Conor.”

The grounds of the motion will be stated and considered in the order in which they are presented.

1. It is contended that the affidavit does not show ■ that the defendant was indebted to the plaintiff in his representative character as receiver.

The title of the action, prefixed as a heading to the affidavit, characterizes the plaintiff as “ Receiver of the Consolidated National Bank of San Diego”; and, referring to this heading, the affidavit states that the affiant, Andrew J. O’Conor, “ is the plaintiff in the above entitled action.” This means that he is Andrew J. O’Conbr, receiver of the Consolidated National Bank of San Diego. The next statement, “ that the defendant in said action is indebted to him,” plainly means that defendant is indebted to Andrew J. O’Conor, as characterized in the title of the action. The pronoun “him” relates to and stands for Andrew J. O’Conor, receiver of the Consolidated National Bank of San Diego, the plaintiff in the action, else it is not true, as stated in the affidavit, that Andrew J. O’Conor is the plaintiff in said action. It follows that the affidavit

O'Conor v. Roark

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief