O'Conor v. Witherby

Haynes C. Appeal from an order denying defendant’s motion to dissolve an attachment, and from an order refusing to retax the costs of said attachment. Appellant’s only contention is that the affidavit for attachment is defective and insufficient in the following particulars: 1. That it does not show that the defendant was indebted to the plaintiff; 2. That it does not specify the amount of such indebtedness; 3. That the amount of plaintiff’s demand in said writ is not stated in conformity to the complaint; 4. That it does not specify the amount of such indebtedness over and above all legal setoffs and counterclaims; 5. That it does not state that the payment of said alleged indebtedness has not been secured by any mortgage or lien upon personal property, or any pledge of personal property. [41] All of these objections, except the last, were considered and decided adversely to appellant in the case of O’Conor v. Roark, 108 Cal. 173, the affidavit in that case being the same as the one before us so far as the first four objections are concerned. Those points need not therefore be considered. So far as appellant’s fifth point is concerned, the language of the affidavit is as follows: “ That the payment of the same has not been secured by any mortgage or lien upon real or personal property, or any pledge upon personal property.” The statute usés the word “of” instead of “ upon.” It is said that a pledge “ upon ” personal property is meaningless. The intention of affiant, however, is plain, and it might properly be held a mere clerical error which would not affect its sufficiency. If that clause of the affidavit had been omitted we should be compelled to hold that it was sufficient. The declaration that he has no lien upon personal property negatives all possibility of his having a pledge; for if he had a pledge of personal property he must have had a lien upon it. It was expressly so decided in Glidden v. Whittier, 46 Fed. Rep. 437, under the statute of Idaho, which contains precisely the same 'requirement. In that case the last clause was entirely omitted. The affidavit for attachment being sufficient, the motion to retax the costs was properly denied. The orders appealed from should be affirmed. Searls, C., and Vanclief, C., concurred. For the reasons given in the foregoing opinion the orders appealed from are affirmed. McFarland, J., Temple, J., Henshaw, J.