Denver v. Burton
California Supreme Court
Appeal from the District Court, Sixth Judicial District, Sacramento County. The complaint averred that John Burton and Ed.
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Appeal from the District Court, Sixth Judicial District, Sacramento County. The complaint averred that John Burton and Ed. McCarty, who were engaged in the mercantile business in Sacramento, on the 2d day of October, 186], confessed two judgments, one in favor of C. H. Burton, a brother of John Burton, for twenty-four thousand dollars, and the other in favor of E. P. Spillman, for about tén thousand dollars, and that executions were issued on the judgment and immediately levied on the goods of Burton & McCarty, and that later in the same day, Burton & McCarty confessed a judgment in favor of…
1Opinion of the Court
By the Court,
Sawyer, J.
There is no direct allegation in'the complaint that, at the time judgment by confession was entered against Éurton & McCarty in favor of the plaintiff, the money for which judgment was confessed was unpaid or then due. It was assumed, but not averred, that the money was due, and on that assumption the amount stated. This mode of statement is insufficient. (Halleck v. Mixer, 16 Cal. 577.) In an action to secure a priority of lien over Wilcoxson, who subsequently obtained the proceeds of sale of defendants’ property under his own judgment, such an allegation is, in our…
2Cited by5 opinions
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