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Fay v. Cobb

5 Citing cases

  1. Greenbaum v. Turrill

    57 Cal. 285 (Cal. 1881)   Cited 6 times

             The defendant has a right to an opportunity to establish his defense before a jury by evidence admissible for that purpose, and he has a right to put the plaintiffs to the proof of their demand, and to require that they establish it by competent evidence. (Fay v. Cobb , 51 Cal. 313.)          It seems to be conceded, that, if the defense be bona fide, the affidavit of the defendant to that effect is a sufficient answer to any attempt to strike it out as sham.

  2. Alexander v. McDow

    108 Cal. 25 (Cal. 1895)   Cited 31 times
    In Alexander v. McDow, 108 Cal. 28, where the complaint contained no allegations as to attorney's fees, but the promissory note set forth in the complaint provided for them, and the prayer of the complaint asked for them, this, court said: "It is fairly deducible from the complaint, therefore, that plaintiff asks an allowance of a specific sum as being reasonable and due for attorney's fees under the contract."

    The complaint is insufficient to support the judgment, there being no allegation of assignment to the plaintiff. (Grogan v. Ruckle , 1 Cal. 158, 193; Youngs v. Bell , 4 Cal. 201; Hastings v. Dollarhide , 18 Cal. 391; Mahe v. Reynolds , 38 Cal. 560; Foltier v. Schroeder, 19 La. Ann. 17; 92 Am. Dec. 522; Bank of Shasta v. Boyd , 99 Cal. 604; Fay v. Cobb , 51 Cal. 313; Roby v. Hallock, 55 How. Pr. 412; Bank of California v. Boyd , 86 Cal. 386; Poorman v. Mills , 35 Cal. 118, 121; Van Giesen v. Van Giesen , 10 N.Y. 316; 18 Am. & Eng. Ency. of Law, 570; Lord v. Chesebrough, 4 Sand. (Sup. Ct.) 696; Boone's Forms, 51; Lancaster v. Baltzell, 7 Gill & J. 468; 28 Am. Dec. 233; Bliss on Code Pleading, sec. 232; Jaccard v. Anderson , 32 Mo. 188; Rousch v. Duff , 35 Mo. 312; Van Santvoord's Pleadings, 173; Read v. Buffum , 79 Cal. 81; 12 Am. St. Rep. 131.) The complaint does not support the judgment for attorney's fees, there being no allegation of the facts.

  3. Dorland v. Smith

    93 Cal. 120 (Cal. 1892)   Cited 7 times

    A case cannot be tried on affidavits. (Fay v. Cobb , 51 Cal. 315; Greenbaum v. Turrill , 57 Cal. 288.) The plaintiff or defendant or purchaser may move to vacate the sale, but not the grantee of the defendant.

  4. Meredith v. Santa Clara Mining Association of Baltimore

    60 Cal. 617 (Cal. 1882)   Cited 19 times
    In Meredith v. Santa Clara Mining Association, 60 Cal. 617, it was held that upon a motion to enter judgment against [34 P. 628] the sureties on their undertaking to stay execution pending the appeal provided for by section 942, no notice to them is necessary; that by their stipulation in the undertaking they have voluntarily made themselves parties to the action, and that the court has acquired a jurisdiction over them which it retains until the enforcement of any judgment recoverable against them as parties to the action.

             An issue of this kind cannot be tried upon affidavits. (Fay v. Cobb , 52 Cal. 313.)          Thereis no provision of the law for the entry of judgment upon an undertaking such as the one in question.

  5. Lybecker v. Murray

    58 Cal. 186 (Cal. 1881)   Cited 21 times
    In Lybecker v. Murray, 58 Cal. 186, it is said: ‘Under no circumstances is the discretion of the court to be exercised arbitrarily, but it is a discretion governed by legal rules, to do justice according to law, * * * as near as may be; ’ citing Ex parte Hoge and Ex parte Marks, 49 Cal. 681.

             The answer contained specific denials of material allegations in the complaint, and can not be treated as sham. (Fay v. Cobb , 51 Cal. 315.)           Creed Haymond, for Appellants.