Tibbet v. Sue

Citations

• 122 Cal. 206
• 54 P. 741
• 1898 Cal. LEXIS 558

Syllabus

<p>Attachment—Affidavit—Statement of Indebtedness.—An affidavit for attachment, which alleges a specific indebtedness of defendants to the plaintiff in a principal sum, is not vitiated by referring to “interest and attorney’s fees,” without further specification; but is sufficient to sustain the attachment at least to the extent of the principal sum.</p> <p>Id.—Demand Stated in Complaint—Attachment fob Less Amount. The writ of attachment should not be issued for an amount in excess of the demand set forth in the complaint; but it may be for an amount less than the demand set forth in that pleading.</p> <p>Id.—Undertaking—Defective Affidavit of Sureties—An undertaking on attachment is insufficient to sustain the writ, if the affidavit of the sureties omits to state the material fact that they are householders or freeholders.</p> <p>Id—Discharge of Writ—A writ issued upon an undertaking not accompanied by an affidavit of the sureties, as required by section 1057 of the Code of Civil Procedure, is irregularly and improperly issued, and must be discharged upon application.</p> <p>Id.—Construction of Code—Proceedings for Attachment not Amendable.—Section 558 of the Code of Civil Procedure, requiring that an attachment must be discharged, if improperly or irregularly issued, must be held to control and limit the general provisions of section 473 of that code, relative to the amendment of pleadings or proceedings in furtherance of justice. Neither an affidavit nor an undertaking on attachment is amendable, if not sufficient to sustain the writ.</p>