Opinion
[Syllabus Material] 42 Cal. 475 at 478.
Original Opinion of October 1871, Reported at: 42 Cal. 475.
JUDGES: Wallace, J. Neither Mr. Chief Justice Rhodes nor Mr. Justice Temple took any part in the decision on rehearing.
OPINION
WALLACE, J.
Afterwards a petition for rehearing having been filed by defendants, the following decision was rendered:
By the Court, Wallace, J.:
In the original complaint before us on the first appeal (39 Cal. 504), there was not a sufficient, nor any, averment of a mistake having occurred in the entry of satisfaction of the mortgage in question. There was no allegation that there had been an agreement between Russell and Miller for a transfer of the mortgage by the latter to the former, and that the mistake occurred in the attempted carrying this agreement into effect. In the amended complaint, however, it is averred, that Russell applied to Miller to obtain an assignment of the mortgage; that Miller consented to give him the assignment, and that the two proceeded together to the Recorder's office " for the express purpose of making such transfer to this plaintiff." The case, as thus presented in the amended complaint, is essentially different from that appearing in the original complaint in the respect indicated. It is true that even in the amended complaint it is not alleged with commendable certainty and precision, that Miller did agree to transfer the mortgage to Russell, and had an objection been taken below to the sufficiency of the amended complaint on that ground, the plaintiff must have been driven to a further amendment; but no such objection was interposed there, and it can not be maintained, that for these defects in manner, rather than in matter, of averment, the complaint is radically insufficient to sustain the judgment.
The rehearing must, therefore, be denied, and it is so ordered.