Cone Export & Commission Co. v. McCalla

Fish, J. 1. Under the Civil Code, § 5662, a second affidavit of illegality is not maintainable if based upon “ causes which existed and were known, or in the exercise of reasonable diligence might have been known at the time of filing the first.” 2. It necessarily follows that when, upon the trial of the issue formed by the filing of a second affidavit of illegality, the affiant testified : “All the grounds in this second affidavit were really known to me at the filing of my first affidavit, but I did not know that they ought to be put in,” a verdict could not lawfully be rendered in his favor. 3. The court in the present case erred in overruling the certiorari, but ought.to have sustained the same; and inasmuch as the correction of the errors of law committed in the magistrate’s court would have finally governed the case, and there was no question of fact rendering it necessary to send it back for a new hearing in the justice’s court, final judgment should in the superior court have been rendered in favor of the plaintiffs in certiorari. Civil Code, § 4652. Judgment reversed. All the Justices concurring.