Whitwell v. Thomas

California Supreme Court

Whitwell v. Thomas

9 Cal. 499

CourtCalifornia Supreme Court

DecidedJuly 1, 1858

StatusPublished

Cited by3 cases

This text of 9 Cal. 499 (Whitwell v. Thomas) 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

Whitwell v. Thomas, 9 Cal. 499 (Cal. 1858).

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Opinion

Field, J., delivered the opinion of the Court—Terry, C. J., and Burnett, J., concurring.

The only question for consideration is, whether any material averment of the complaint is denied by the answer. The test [500]*500of materiality is this: Could the averment be striken from the pleading without leaving it insufficient ? (Practice Act, § 66.) Judged by this test, the averment of copartnership is immaterial. The complaint would be sufficient if this were stricken out. The execution of the notos—not the copartnership of the defendants at the time, constitutes the material averment, and this is not controverted.

Judgment affirmed.

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Field, J., delivered the opinion of the Court—Terry, C. J., and Burnett, J., concurring.

The only question for consideration is, whether any material averment of the complaint is denied by the answer. The test [500]*500of materiality is this: Could the averment be striken from the pleading without leaving it insufficient ? (Practice Act, § 66.) Judged by this test, the averment of copartnership is immaterial. The complaint would be sufficient if this were stricken out. The execution of the notos—not the copartnership of the defendants at the time, constitutes the material averment, and this is not controverted.

Judgment affirmed.

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Bluebook (online)

9 Cal. 499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitwell-v-thomas-cal-1858.

Opinion

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