Freeborn v. Glazer

10 Cal. 337

• Court: California Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Field, J., delivered the opinion of the Court

Terry, C. J., concurring.

The complaint contains several counts which are in the ordinary form of counts in indebitatus assumpsit, for goods sold and delivered, and money paid and expended; and it is objected to, not by demurrer, but after answer, as defective in not stating facts sufficient to constitute a cause of action. The objection is not well taken. The complaint is sufficient in its allegations; and if they were deemed too general, the defendant could have applied for and obtained an order upon the plaintiffs to furnish a bill of particulars. It states a promise by the defendant, and its consideration and breach. (Allen v. Carpenter, 3 Selden, 476; Buckner v. Platner, 15 Barb., 550; Adams v. Halley, 12 How. Prac., 326; Cudlipp v. Whipple, 1 Abb., 107.)

The notice of motion to discharge the writ of attachment, stated that the motion would be made “ because the said writ was' improperly issued.” The notice should have specified the grounds of the motion, and wherein it would be urged that the writ was improperly issued. The notice gave no information to the adverse party as to the character of the objections which would be taken.

It is true, it does not appear from the record for what reason the Court denied the motion; it may have been for the general and vague character of the objection stated. We certainly will not presume that it was denied for an invalid reason.

The notice of motion to dismiss the complaint, stated specifically the grounds upon which the motion would be made, but it does not appear that any papers were read, or any evidence offered in their support.

Judgment affirmed.

On the petition for a re-hearing, Field, J., delivered the opinion of the Court—Terry, C. J., and Baldwin, J., concurring.

One of the errors assigned for a reversal of the judgment in this case, was the refusal of the motion to dismiss the writ of attachment. The notice stated that the motion would be made “ because the said writ was improperly issued;” and we held that the notice was defective, in not specifying the grounds of the motion, and wherein it would be urged that the writ was improperly issued. The appellant now petitions for a re-hearing, and cites the Court to the one hundred and thirty-eighth section of the Practice Act, which provides that the defendant may, at any time before answering, “apply, on motion, upon reasonable notice to the plaintiff, to the Court in which the action is brought, or to the Judge thereof, or to a County Judge, that the attachment be discharged, on the ground that the writ was improperly issued.” This section did not escape the attention of the Court in the decision rendered. That section does not obviate the necessity of specifying the particular points of irregularity upon which the motion will be made. It is only a provision that whenever the writ is improperly issued, that fact will authorize the application for its discharge. It is like a great variety of provisions indicating the general ground or reason upon which parties may proceed, or the action of the Court may he based, and which are never held to obviate the necessity of specifying the points of objection upon which the moving party will rely. If the point be stated, it may be possible for the opposite party to answer it, and the object of the rule is to give him a fair opportunity to do so.

Re-hearing denied.