A. P. Hotaling & Co. v. Brogan

107 P. 711, 12 Cal. App. 500, 1910 Cal. App. LEXIS 330

• Court: California Court of Appeal
• Decided: January 26, 1910
• Docket: Civ. No. 636.
• Status: Published

Opinion

CHIPMAN, P. J.

A writ of attachment issued in this case which, upon motion of defendant, was discharged on the ground that the affidavit required by section 538, Code of Civil Procedure, “is not properly or at all subscribed or sworn to on behalf of the said plaintiff.” Plaintiff appeals from the order.

The affidavit reads, giving the title of court and cause:

“State of California,

City and County of San Francisco.—ss.

“R. M. Hotaling of the plaintiff corporation in the action above named, being duly sworn, deposes and says: [Then follows statement of the indebtedness to plaintiff and other facts required by the statute]; and this deponent further says [then follow still further facts required to be stated]; that affiant is the duly elected, qualified and acting President of the plaintiff corporation, and makes the affidavit in its behalf.

“A. P. HOTALING & CO.

“By R. M. HOTALING, President.

“Subscribed and sworn to before me this 29th day of March, 1909.

“THOMAS S. BURNS,

“Notary Public in and for the City and County of San Francisco, State of California.”

Section 538, Code of Civil Procedure, provides that the clerk shall issue the writ of attachment, “upon receiving an affidavit by or on behalf of plaintiff.” All of the facts necessary to a sufficient affidavit appear in the body of the document here, leaving the sole question whether it sufficiently appears that the affidavit was made “by or on behalf of plaintiff. ’ ’

In judging of its sufficiency in the particular called in question we must refer to the entire affidavit. It plainly appears that R. M. Hotaling was, when he made the affidavit, the president of the corporation, and that he made it “in its behalf.” That he was the person sworn and the person who made the affidavit and deposed to the facts embodied in it clearly appears from the body of the document which the notary certifies was subscribed and sworn to. It was not necessary that the affidavit be signed. (Ede v. Johnson, 15 Cal. 53; Pope v. Kirchner, 77 Cal. 152, [19 Pac. 264]; State v. Washoe Co., 5 Nev. 320.) The corporation could not make the affidavit, and the fact that its name is attached to it is of no importance, and involves no ambiguity upon the question as to who in fact made it. That the affiant affixed the corporate name, followed as it is—“By R. M. Hotaling, President,” does not change the fact, clearly appearing, that he, Hotaling, personally made the affidavit and was the one who subscribed and swore to it. Taking the document as a whole, there can be no doubt as to the essential statutory requirement appearing that a sufficient affidavit must be made “by or on behalf of the plaintiff.” Nor do we doubt that the test suggested by respondent is here met, namely, that the affidavit must “be so clear and certain that an indictment for perjury may he sustained upon it if false.”

Blyth & Fargo Co. v. Swensen et al., 7 Wyo. 303, [51 Pac. 873], is cited by both parties. In that ease the affidavit read: “Plaintiff in the action above named, being duly sworn, deposes and says,” etc., and is signed: “The Blyth & Fargo Co. by Sherman Fargo, Managing Agent. Subscribed and sworn to before me . . . John W. Sammon, Clerk.” The court said: “It is not the affidavit of the plaintiff, for, being a company, it cannot take an oath. It is not the affidavit of the agent for nowhere in the paper is it purported that the agent makes any statement whatever. The language is that ‘the plaintiff deposes and says.’ ” In the case here, however, it appears clear enough that the plaintiff did not make the affidavit, but Hotaling made it; that he was a proper person to make it, and that he made it, as the statute authorized him to do, on behalf of the plaintiff.

We are well satisfied that the affidavit was sufficient, and the order is, therefore, reversed.

Burnett, J., and Hart, J., concurred.