O'Conor v. Roark

Citations

• 108 Cal. 173
• 41 P. 465
• 1895 Cal. LEXIS 840

Syllabus

<p>Attachment—Affidavit—Reference to Title of Action—Indebtedness to Plaintiff as Receiver.—An affidavit for attachment in a suit by a receiver of a national bank, in the heading of which the title of the action showing the representative character of the plaintiff as receiver is prefixed, but the body of which gives his name without his representative title and states “that he is the plaintiff in the above-entitled action,” and that the defendant “is indebted to him” in a specified sum, must be construed to mean that the affiant is the plaintiff named as receiver in the title of the action, and that the defendant is indebted to him as characterized in the title of the action: and the affidavit sufficiently complies with the requirement of section 538 of the Code of Civil Procedure that it shall show that the defendant is indebted to the plaintiff.</p> <p>Id.—Particularity of Statement in Affidavit.—The same particularity of statement is not requ.red in an affidavit for the issuance of a writ of attachment as in a complaint.</p> <p>Id. —Statement of Amount of Indebtedness—Variance.—The fact that the statement of the amount of indebtedness in an affidavit for attachment expresses only the principal sum, whereas the demand, as stated in the complaint and in the writ of attachment, is of the same principal sum with interest thereon from a specified date at the rate of seven per cent per annum, does not disclose a substantial variance between the affidavit, complaint, and writ in respect of the interest, where the nature of the indebtedness is sufficiently stated in the affidavit to show in legal effect that it draws legal interest'from the date of its maturity.</p> <p>Id.—Construction of Statute—Statement of Amount in Affidavit.— The statute requires the affidavit for, attachment to specify only the amount of indebtedness, and not the amount of plaintiff’s demand in the complaint.</p> <p>Id.—Exclusion of Setoffs ok Counterclaims—Conjunctive Statement. An affidavit stat