gno.law

Denver v. Burton

California Supreme Court · · 1865-10-15 · Published · 28 Cal. 549

A. St. CLAIR DENVER v. C. H. BURTON, JOHN E. P. SPILLMAN, JEFFERSON WILCOXSON, JACKSON WILCOXSON, REDDINGTON & WILLIAMS, JOHN BURTON, and Ed. McCARTY

Area
civil
Panel
Sawyer (author), Shafter

Analysis

No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.

Opinion — Sawyer

By the Court, Sawyer, J.

There is no direct allegation in'the complaint that, at the time judgment by confession was entered against Éurton & McCarty in favor of the plaintiff, the money for which judgment was confessed was unpaid or then due. It was assumed, but not averred, that the money was due, and on that assumption the amount stated. This mode of statement is insufficient. (Halleck v. Mixer, 16 Cal. 577.) In an action to secure a priority of lien over Wilcoxson, who subsequently obtained the proceeds of sale of defendants’ property under his own judgment, such an allegation is, in our opinion, material. For this defect the complaint does not state facts sufficient to constitute a cause of action, and the demurrer was properly sustained.

Judgment affirmed.

Concurrence — Shafter

Shafter, J., concurring specially.

I concur. Admitting for the purposes of argument that there is a sufficient averment that the eighteen hundred dollars “ was due on the 2d of October, 1861,” still it is not alleged that it remained due at the point of time when, on the same day, the confession was filed. The law does not generally take notice of the fractions of a day, hut in a case like the present it should appear by some form of direct statement that at the very instant when the judgment was confessed the relation of creditor and debtor was on foot and to the extent stated in the judgment.

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