Parrott v. Den
California Supreme Court
Appeal from the District Court, First Judicial District, Santa Barbara County. The complaint averred the execution of a note hy the defendant to the plaintiff, for six thousand dollars, and a mortgage to secure it. The note was set out in words and figures. The answer admitted the execution of a note for six thousand dollars, but averred that the note executed was another and different note from that set out in the complaint.
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Appeal from the District Court, First Judicial District, Santa Barbara County. The complaint averred the execution of a note hy the defendant to the plaintiff, for six thousand dollars, and a mortgage to secure it. The note was set out in words and figures. The answer admitted the execution of a note for six thousand dollars, but averred that the note executed was another and different note from that set out in the complaint. It also admitted the execution of a mortgage to secure said sum, but not to secure the payment of such note as was set out in the complaint. An amended complaint was…
1Opinion of the Court
By the Court, Shafter, J.:
This appeal is taken from the judgment and from an order denying a motion made by the defendant to set the judgment aside under the sixty-eighth section of the Practice Act.
First—The motion to set aside the judgment and for leave to answer, was properly overruled; for the reason, if for no other, that there was no affidavit of merits. Such affidavit was indispensable. (Bailey v. Taaffe, 29 Cal. 422.) Should *81the answer to the original complaint he treated as an affidavit of merits, as defendant claims it should be, still its effect must be limited to the note and…
2Cases cited1 opinion
- Bailey v. TaaffeCalifornia Supreme Court · 1866
3Cited by14 opinions
- Burtnett v. KingCalifornia Supreme Court · 1949
- Becker v. S.P v. Construction Co.California Supreme Court · 1980
- Brooks v. ForingtonCalifornia Supreme Court · 1897
- Donlan v. Thompson Falls Copper & Milling Co.Montana Supreme Court · 1910
- Greenamyer v. Board of Lugo Elementary School DistrictCalifornia Court of Appeal · 1931
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