Williams v. Glasgow

Opinion by Lewis, O. J., full Bench concurring. The demurrer interposed by the defendant in this cause was improperly sustained. The complaint, though rather inarti-ficially drawn, contains all the allegations necessary in an action of assumpsit for money loaned. It is averred that the plaintiffs, at the request of the defendant, loaned him the sum of four hundred dollars, seventy-five dollars of which was paid by the assignment of certain mining stock at the time of the loan; that the defendant undertook and promised to pay the remaining three hundred and twenty-five dollars, with interest thereon at the rate of ten per cent, per month, at a certain time specified; that though often requested to pay the same the defendant has neglected and refused so to do, and that there is due to plaintiffs from defendant the sum of three hun [537] dred and twenty-five dollars, with, interest at the rate of ten per cent, per month. Then follows a lengthy count charging the defendant with having procured the money by means of misrepresentations and fraud, which is mere surplusage, and upon motion might have been stricken out. It does not, however, vitiate the first count, which embodies all the necessary allegations, the indebtedness for money loaned at the defendant’s request, the promise to pay, and the refusal to do so. This is all that was required in the mdebitaMos count for money loaned at common law (1 Chitty on Pleading, 341), and is certainly sufficient under the code. Perhaps the complaint should have shown that the promise to pay ten per cent, per month interest was in writing, for if it were not, only ten per cent, per annum can be recovered (Laws of 1861, p. 100, sec. 4) ; but the failure to allege that fact is ground only for special demurrer, if for any at all, for the allegation is defective only as to a part of the demand and not as to the entire cause of action. The complaint being sufficient as to the principal sum claimed, the general demurrer should have been overruled. (1 Oliitty’s Pleadings, 664.) The second point made on the demurrer is that several causes of action are improperly united. Though there is much useless matter in the complaint, the only relief really sought is the recovery of a certain sum of money, and the allegation of fraud, and of the assessment and sale of the stock assigned as collateral security is mere surplus matter, and not the statement of another cause of action. No relief independent of the recovery of the sum of three hundred and twenty-five dollars with interest is sought, and indeed the complaint would justify nothing more if it were claimed. The letter of the Practice Act does not seem to authorize the review of an order dismissing an attachment upon appeal from such an order, and also the final judgment. It cannot be said to be an “ intermediate order or decision involving the merits and necessarily affecting the judgmentand yet with no shadow of authority beyond this the Supreme Court of California has held that such an order will be reviewed on appeal. (Boise v. Brady, 2 Cal. 132; Griswold v. Sharp, 2 Ib., 17; Taffee v. Rosenthall, 7 Cal. 514.) [538] And in adopting tlie Practice Act of that State, it must be presumed to be adopted as interpreted by tlie highest Court of judicature of that State. In cases other than those settling' questions of practice, where decisions are apparently so unauthorized by tlie statute, we would not be disposed to recognize this rule; but where it is a mere question of practice, it is perhaps the best rule which can be adopted, and one which has, at least, the merit of being generally respected by tlie Courts. Upon this rule and the authorities above referred to, this Court places its authority to review the action of the Court below in dismissing the attachment in this case. The defendant’s motion to discharge the writ -was based upon the insufficiency of the affidavit, and the defect complained of, is that it is not alleged therein that the debt claimed is not secured by “ lien or pledge upon real or personal property.” The statement of this fact is made necessary by the law of 1864 and 1865, which does not however apply to this case. The attachment, if allowable at all, could only be issued under tlie law of 1861. The debt upon which this action is based was incurred before the passage of the law of 1864-5, and that Act only applies to contracts made after its passage, leaving the old law unimpaired as to debts incurred prior to the passage of the new Act. The Act of 1861 is not repealed, but only amended in certain particulars, which amendments have no application to contracts made prior to its adoption. In this action, therefore, which is brought upon a contract made prior to such amendment, the old and not the new law should be followed, by which it is only required to be shown that the debt “ has not been secured by any mortgage on real or personal property,” which was done in this case. In this, as well as all other respects, the affidavit seems to be sufficient. But if the defect complained of really existed, the defendant could not take advantage of it after filing his plea in abatement, because the filing of that plea was a waiver of any defects in the affidavit. (Drake on Attachments, sec. 421.) The Court therefore erred in discharging the attachment, and sustaining the demurrer. Judgment reversed.