Opinion
Appeal from the District Court of the Fifteenth Judicial District, City and County of San Francisco.
COUNSEL
An attachment is the creature of the statute, and the statute must be construed as being in derogation of the defendant's common law right to the enjoyment of his property until the termination of the litigation. (Roberts v. Landecker, 9 Cal. 265.) An insufficient affidavit confers no jurisdiction to issue the writ. (1 Selden, 164.) The statute requires that the affidavit should show:
First--That the defendant is in debteded to the plaintiff upon a contract expressed or implied, etc.
Second--That the indebtedness over all legal set-offs and counter claims should be specified.
Third--That the sum for which attachment is asked is an actual and bona fide existing debt, etc.
The affidavit in this case simply sets forth the requirements of the statute in hoec verba, without detailing a single fact upon which the mind of the Clerk could act. (In the Matter of Falkner, 4 Hill, 601; 5 How. Pr. 387; 6 Hill, 288; 1 Barb. 247; 7 Hill. 153.)
Crockett, Whiting & Naphtaly, for Appellant.
Hambleton & Gordon, for Respondents.
Although the creditor is required to set forth the statutory grounds in an affidavit, and file the same with the Clerk, yet it can not be for the purpose of having them adjudicated upon by him; for who has or can constitute a Clerk of the county a Judge, in the legal acceptation of the term? (6 Dana, 324.) We say the right of the Clerk to refuse the writ exists only when the creditor will not swear to the existence of all the causes enumerated in section one hundred and twenty-one of the Practice Act, why the debtor's property should be seized before he has a hearing in Court. If he does so swear, the Clerk shall issue it. (7 Barb. 661; 3 Jones, 295; 16 Ohio, Griswold, 304.)
JUDGES: Rhodes, C.J. Mr. Justice Sprague did not express an opinion. Mr. Justice Crockett, being disqualified, did not sit in the case.
OPINION
RHODES, Judge
Appeal from an order refusing to dissolve an attachment. The ground of the motion is, that the affidavit does not state the facts showing that the defendant is indebted to the plaintiff, but merely states the conclusion that the defendant is indebted to the plaintiff. In other words, the objection is that the plaintiff did not restate his complaint in the affidavit, but only stated that the express contract upon which the defendant was indebted to him was a promissory note. The practice, since the adoption of the statute, has generally been in accordance with the form employed in this case; and we can conceive of no useful purpose that would be subserved, by setting out in the affidavit all the facts in respect to the contract, which are necessary to be stated in the complaint.
Order affirmed.