Carter v. Paige

Citations

• 80 Cal. 390
• 22 P. 188
• 1889 Cal. LEXIS 925

Syllabus

<p>Malicious Attachment—Final'Judgment—Pleading—Dissolution of Attachment — Date of Cause of Action. — When the complaint in an action for damages for a malicious attachment upon a debt that had been paid before the attachment suit was commenced alleges that judgment was rendered and entered in favor of the defendant in the attachment suit, such allegation is sufficient, and it is unnecessary to allege further that the judgment was in full force and effect, and not vacated, set aside, reversed, or appealed from. If the judgment is for any reason no longer in force, that fact should be alleged by the defendant in his answer. An allegation in the complaint that the judgment was not appealed from within five days, intended to show the final dissolution of the attachment, may be treated as surplusage, with reference to the finality of the judgment, and is not an admission that the judgment was appealed from after five days. It seems that in such case the cause of action dates from the final judgment, and not from the dissolution of the attachment; but this question is not decided.</p> <p>Appeal — Judgment Boll — Order Allowing Amendment to Complaint — Irregularity —■ Judgment by Default. — On an appeal from a judgment by default, taken upon the judgment roll alone, the fact that an amended complaint was not filed within the time allowed by an order permitting the amendment cannot be considered, as the order allowing the amendment is no part of the judgment roll. That fact, if existing, constitutes a mere irregularity, which can only be reviewed upon a record made upon a motion to set aside the judgment, and on appeal from an. order denying the motion.</p>