Opinion
Appeal from the District Court, Eleventh Judicial District, El Dorado County.
On the trial of this action in the District Court, plaintiff had judgment. The defendants moved for a new trial, which was denied by the Court, and they appeal from the judgment and the order denying said motion. Pending the appeal, the respondent moved this Court to strike out appellants' notice and statement on his motion for new trial, on the grounds: 1st, That said notice was not served and filed within ten days after entry of judgment. 2d, That neither said notice nor statement was served upon the attorney of record for plaintiff.
COUNSEL:
That the Court erred in ruling that the payment of the judgment against respondent was admitted by appellants' answer; and cited Thompson v. Lynch , 29 Cal. 189; Coleman v. Woodworth, Ib. 566; Vassault v. Austin , 32 Cal. 597; Prac. Act, Sec. 55.
That it was necessary that plaintiff should have paid thejudgment, to entitle a recovery; and cited Law v. Archer, 2 Kernan, 277; 14 Barb. 208; 21 Coms. 117; 4 Wend. 306; 21 Cal. 438; 25 Cal. 169; Churchill v. Hunt , 3 Denio, 321; Jackson v. Post, 17 Johns. 482; Sedg. on Dam. 307.
That plaintiff by his own showing cannot recover, because his acts were grossly wrong. That if an act directed to be done, or agreed to be done, is known at the time to be a trespass, an express promise to indemnify would be illegal and void; and cited 9 Cow. 155; Cowper, 343; 2 Johns. Cases, 53; 18 Ohio, 81-85; 7 Wend. 276; 17 Mass. 258; 3 Barn. & Ald. 179.
Also, that a bond to an officer to do his duty is void; and cited 5 Munroe, 529; 12 Ohio, 281; 1 Caine, 104.
Also, that an indemnity to do an act manifestly a violation of duty, is void; and cited Wright v. Lord, 3 Doug. 240; Chitty on Cont. 678.
That a Court of law will not sustain an action between two joint trespassers; and cited Will. Eq. Jur. 107.
Blanchard & Irwin, for Appellants, argued:
P. Teare, and P. L. Edwards, for Respondent, argued:
That the motion to strike out should prevail, because the plaintiff's action was commenced by one attorney, and the notice and statement in question wereserved, not on him, but on others, who had not been substituted in his stead; and cited Sec. 10 Act concerning Attorneys at Law.
On the merits of the case the principal question is as to the construction of the pleadings. Respondent specifically avers that he paid the judgment. Appellants attempt to deny. We claim that this denial is not good. It is not a specific denial of the facts stated by respondent, showing payment; and further, it is a denial, on information and belief, to a verified complaint. The case most relied upon by appellants is Vassault v. Austin , 32 Cal. 597. The opinion in that case speaks of the denial as being on information and belief, and does not say, on their information and belief. We cannot but believe that the record in that case shows that the pronoun their was used, or the Court must have thought that the allegations of the complaint were so loose as to require but a loose denial. We do not understand that the words " on information and belief" are tantamount to saying on his or their information and belief; it may be on the information and belief of some one else. Our statute (Prac. Act, Sec. 46) requires, when the factis not within the knowledge of the defendant, that he shall deny, according to his information and belief. What this statute requires is very clearly stated in Humphreys v. McCall , 9 Cal. 62; also, in Gas Company v. San Francisco , 9 Cal. 466, 473.
JUDGES: Sawyer, J.
OPINION
SAWYER, Judge
The Court rendered its decision on the 22d of November, 1866. It does not appear that notice of the rendering of the decision was ever served on the appellants. The time to serve notice of intention to move for a new trial, under section one hundred ninety-five of the Practice Act, does not commence to run, till written notice of the rendering of the decision is served. It does not appear that the time had commenced to run against the appellants, at the time their notice of intention to move was served, and we cannot, therefore, say they were not in time.
S. and George Williams appear, by the record, to have been acting as attorneys for plaintiff all through the case, after the filing of the complaint. They were recognized as such by the District Court, and the parties. How they became attorneys, whether by substitution, or otherwise, does not appear. It is sufficient that they appear by the record to have been the attorneys of the plaintiff in the Court below.
The action is on a bond to indemnify the plaintiff against any damages he might sustain, by levying an attachment upon property claimed, by the owner, to be exempt. Upon receiving the indemnity bond, in suit, the attachment was levied, and the property afterward sold upon an execution issued on the judgment in the attachment suit. The plaintiff was afterward sued by the owner of the property, and judgment recovered against him. In his complaint, plaintiff alleges the payment of the judgment. In the answer, " said defendants deny, on information and belief, that said plaintiff ever paid said sum," etc. No evidence of payment was introduced--the Court holding that the allegation of payment was not put in issue by the denial in the form above stated. The point is, that the denial, in order to raise an issue, must be in the precise words of the statute, " according to his information and belief," and that " on information and belief" is sufficient. Section fifty-five of the Practice Act provides: " In all cases of the verification of a pleading, the affidavit of the party shall state that the same is true of his own knowledge, except as to the matters which are therein stated on his information or belief, and as to those matters, that he believes it to be true." In this section the form of expression is, " on his information and belief," and not " according to his information and belief," as in section forty-six. The same matters are referred to in both sections, in these different forms of expression, and the Legislature seems to use them in the same sense. In the verification the party states that he believes the matters stated on information or belief to be true. They must, therefore, be according to his information and belief.
We think, upon a view of all the provisions, that issue was substantively taken as required. A denial in this form was held to raise an issue in Vassault v. Austin , 32 Cal. 597. There was no evidence of payment of the judgment by plaintiff, and, consequently, no actual damage shown. Evidence of the kind was necessary under the issue. This case is within the principle adopted in Wilson v. McEvoy , 25 Cal. 170, and Prader v. Grimm , 28 Cal. 12. There is nothing in the point that the indemnity was against a trespass, (Stark v. Raney , 18 Cal. 622,) nor in the point that the indemnity was against the attachment, and not a sale upon execution. The property was seized on the attachment, to be held for the security of any judgment that might be obtained, and was subsequently appropriated to the purposes, for which the seizure was made.
But the judgment and order denying a new trial must be reversed, and a new trial had on the grounds before indicated; and it is so ordered.