Smith v. Richmond
California Supreme Court
Appeal from the Sixth District. Complaint, not verified, averred substantially as set forth in first syllabus. Answer, not verified, denied all the allegations of the complaint, and set up discharge in insolvency in bar. On the trial, plaintiff proved up the note mentioned in the complaint, introduced it in evidence, and rested.
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Appeal from the Sixth District. Complaint, not verified, averred substantially as set forth in first syllabus. Answer, not verified, denied all the allegations of the complaint, and set up discharge in insolvency in bar. On the trial, plaintiff proved up the note mentioned in the complaint, introduced it in evidence, and rested. Defendant moved for a nonsuit on the ground, among others, that the action is to recover a debt founded on the new promise alleged to have been made by defendant after his discharge in insolvency, and that there is no proof of such new promise. Overruled. Instructions…
1Opinion of the CourtBaldwin, J.
Field, C. J. concurring.
The complaint in this case does not distinctly, if at all, count on two causes of action. The whole matter of the complaint seems to be blended in one statement. If the complaint was intended to set up two causes of action, this intent was not distinctly manifested by the form of the complaint, as it should have been.
It is true, the complaint does not aver that the defendant was discharged in bankruptcy; it says he claimed to be, but in the next sentence it avers that after his discharge he promised, etc.; and we are inclined to think that the proper construction is…
2Cited by2 opinions
- Doll v. GoodCalifornia Supreme Court · 1869
- Norris v. GlennIdaho Supreme Court · 1875