Prader v. Purkett

California Supreme Court

Prader v. Purkett

13 Cal. 588, 1859 Cal. LEXIS 207

CourtCalifornia Supreme Court

DecidedJuly 1, 1859

StatusPublished

Cited by4 cases

This text of 13 Cal. 588 (Prader v. Purkett) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Prader v. Purkett, 13 Cal. 588, 1859 Cal. LEXIS 207 (Cal. 1859).

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Opinion

Baldwin, J. delivered the opinion of the Court—

Terry, C. J. concurring.

This is an action on an undertaking executed in a chancery case, pursuant to the order of the Judge for a temporary injunction. It is objected that the statute does not provide for an undertaking in such a case. But whether this point be sustained [591]*591by a right interpretation of the statute or not, we think that as the Chancellor had taken jurisdiction of the general subject, he had power to make this order as any other order in the progress of the case, for the furtherance of the objects of the litigation, and the protection of the subject matter of it.

2. It is next objected that the paper is void because expressing no consideration. But taking the order and the undertaking together, we think it does sufficiently express the consideration.

3. The order under which this undertaking was executed was made on the 29th of September, 1856, and we understand that at that time there was a suit pending between the parties mentioned in the complaint. This was enough to give the Court jurisdiction and the regularity of the exercise of it cannot bo collaterally impeached.

4. The suit was properly brought in the name of the party beneficially entitled to the fruits of recovery, though there were several obligees, as we held in the case of Summers v. Parish, (10 Cal. 350.)

We think the demurrer was improperly sustained.

Judgment reversed, and cause remanded.

On rehearing, Baldwin, J. at the July Term, 1860, delivered the opinion of the Court—Field, C. J. and Cope, J. concurring.

We passed on this case at a former term. We have since reviewed the opinion, at the instance of the Respondent’s counsel. We see nothing to change the judgment before directed; and nothing in the points, which are purely technical, requiring further elaboration. The former opinion is adopted as explanatory of the grounds of our decision.

See Browner v. Davis Martin et al. 14 Cal.; Prader v. Grim & Cooper, ante.

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Baldwin, J. delivered the opinion of the Court—

Terry, C. J. concurring.

This is an action on an undertaking executed in a chancery case, pursuant to the order of the Judge for a temporary injunction. It is objected that the statute does not provide for an undertaking in such a case. But whether this point be sustained [591]*591by a right interpretation of the statute or not, we think that as the Chancellor had taken jurisdiction of the general subject, he had power to make this order as any other order in the progress of the case, for the furtherance of the objects of the litigation, and the protection of the subject matter of it.

2. It is next objected that the paper is void because expressing no consideration. But taking the order and the undertaking together, we think it does sufficiently express the consideration.

3. The order under which this undertaking was executed was made on the 29th of September, 1856, and we understand that at that time there was a suit pending between the parties mentioned in the complaint. This was enough to give the Court jurisdiction and the regularity of the exercise of it cannot bo collaterally impeached.

4. The suit was properly brought in the name of the party beneficially entitled to the fruits of recovery, though there were several obligees, as we held in the case of Summers v. Parish, (10 Cal. 350.)

We think the demurrer was improperly sustained.

Judgment reversed, and cause remanded.

On rehearing, Baldwin, J. at the July Term, 1860, delivered the opinion of the Court—Field, C. J. and Cope, J. concurring.

We passed on this case at a former term. We have since reviewed the opinion, at the instance of the Respondent’s counsel. We see nothing to change the judgment before directed; and nothing in the points, which are purely technical, requiring further elaboration. The former opinion is adopted as explanatory of the grounds of our decision.

See Browner v. Davis Martin et al. 14 Cal.; Prader v. Grim & Cooper, ante.

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Bluebook (online)

13 Cal. 588, 1859 Cal. LEXIS 207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prader-v-purkett-cal-1859.

Opinion

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