W. Fine & Son v. Hall

Full title: W. FINE&SON v. HALL ET AL.

Court: District Court of Appeals of California, Third District

Date published: Apr 15, 1933

21 P.2d 697 (Cal. Ct. App. 1933)

Opinion

Rehearing Denied May 15, 1933.

Hearing Granted by Supreme Court June 12, 1933.

Appeal from Superior Court, Butte County; H. D. Gregory, Judge.

Action by W. Fine & Son against Grace G. Hall and another. From a judgment dismissing the action, and from orders sustaining the demurrer to the complaint without leave to amend and dissolving the attachment, plaintiff appeals.

Reversed. COUNSEL

De Lancey C. Smith and Francis C. Brown, both of San Francisco (J. Oscar Goldstein, of Chico, of counsel), for appellant.

Walter H. Linforth and William M. Cannon, both of San Francisco, and George F. Jones, of Oroville, for respondents.

OPINION

Mr. PLUMMER, Justice

Two questions are presented for our consideration upon this appeal: (1) The correctness of the order of the trial court sustaining the defendants’ demurrer to the plaintiff’s complaint without leave to amend and dismissing the action; (2) the order of the trial court dissolving the attachment issued at the instance of the plaintiff. As Orville Pratt, named as a defendant, did not appear in the action, for convenience hereafter we will refer to Grace G. Hall as the defendant.

The complaint is in two counts, and has for its purpose the enforcement of a stockholder’s liability, it being alleged therein that the defendant Grace G. Hall is the owner of all but two shares of the capital stock of the corporation mentioned in the complaint.

The first count of the complaint, among other things, alleges the existence of a corporation known as "Kitrick & Hall," organized under the laws of the state of California, of which Grace G. Hall owns 498 shares of the 500 shares of the capital stock thereof. In paragraph 5 of the first cause of action set forth in the complaint, it is alleged that on or about April 30, 1931, the corporation known as Kitrick & Hall executed and caused to be delivered to the plaintiff negotiable warehouse receipts in writing, certifying to the storage in a warehouse owned and operated by said corporation in Chico, Cal., of 11,977 sacks of barley, and also further certifying to the storage in a warehouse owned and operated by said corporation in the town of Durham, of 4,107 sacks of barley, deliverable to, or upon the order of, the plaintiff; and further alleging that said barley was at all times thereafter, and at the time of the filing of the complaint, of the value of $14,591.68. The complaint then alleges that said warehouse receipts were owned by the plaintiff, and had been owned by plaintiff ever since the issuance thereof, and that on April 30, 1931, plaintiff presented said warehouse receipts to said Kitrick & Hall, Inc., and offered to pay all charges for storage due thereon, and demanded delivery of the barley.

The complaint further alleges the refusal to deliver the barley, save and except 615 sacks thereof, and concludes with a demand for judgment in the sum of $14,032.03 against the defendants in this action.

The second count of the complaint, after certain preliminary allegations not necessary to be mentioned herein, sets forth that, within two years preceding the commencement of the action, Kitrick & Hall, a corporation, became, and at the date of the institution of the action was, indebted to the plaintiff in the sum of $14,032.03 for money had and received by said Kitrick & Hall, a corporation, for the use and benefit of the plaintiff, etc., and that no part of said sum had been paid to the plaintiff. The second count of the complaint refers to the allegations showing that Grace G. Hall was, at all times mentioned in the complaint, the owner of 498 shares of the capital stock of the corporation of Kitrick & Hall. To this complaint the defendant Grace G. Hall interposed only a general demurrer, as follows:

"I. That the first cause of action set forth in plaintiff’s complaint does not state facts sufficient to constitute a cause of action against this defendant;

"II. That the second cause of action set forth in plaintiff’s complaint does not state facts sufficient to constitute a cause of action against this defendant."

At the time of filing her demurrer, the defendant Grace G. Hall also gave notice of a motion to dismiss the attachment issued in said action, on the grounds that said writ of attachment was improperly and irregularly obtained and issued, and that the commencement or prosecution of said action is not authorized by law, and that the court has no jurisdiction of the subject-matter thereof. The court sustained the general demurrer and granted the motion to dismiss the attachment, from which orders and the judgment of dismissal the plaintiff appeals.

The order of the trial court sustaining the demurrer interposed by the defendant, and granting her motion to dismiss the attachment, and the entry of judgment of dismissal of the action, appears to be based upon the theory that, when section 3 of article 12 of the Constitution was repealed at the general election held on November 4, 1930, all right of action, if any, held by the plaintiff in this action thereupon ceased, and that section 322 of the Civil Code was at the same time repealed by implication.

Before considering the legal phases involved, it is proper to state the facts set forth in the plaintiff’s brief, and likewise admitted in the defendants’ reply thereto, to wit: That four warehouse receipts were introduced in evidence on the motion to discharge the attachment, disclosing that on May 3, 1930, a warehouse receipt was issued showing deposit of barley in a Durham warehouse, under lots numbered 262, 265, and 266, of 2,231 sacks of barley; a warehouse receipt dated May 15, 1930, showing deposit in a Durham warehouse of lots numbered 272, 316, and 318, of 1,876 sacks of barley; a warehouse receipt dated April 6, 1931, showing deposit in a Chico warehouse under lot numbered 627, of 6,330 sacks of barley; and a warehouse receipt dated April 11, 1931, showing deposit in a warehouse in Chico, under lot numbered 628, of 5,647 sacks of barley.

Upon the issuance of these negotiable warehouse receipts the liability of the corporation was created, and likewise the liability of the defendant Grace G. Hall, as a stockholder therein, became fixed.

The foregoing recited admissions show that all of the barley deposited in a Durham warehouse was deposited prior to November 4, 1930, and negotiable warehouse receipt issued therefor, likewise prior to November 4, 1930; also that the barley deposited in a Chico warehouse was all deposited during the month of April, 1931, several months preceding the repeal of section 322 of the Civil Code, which became effective on August 14, 1931.

Reversing the order followed by the appellant and respondents in their briefs, we will first consider the second cause of action alleging liability as and for money had and received. The law seems to be very well settled that a plaintiff whose property has been converted or misappropriated may waive the tort and sue for the value of the property wrongfully converted.

In the case of Armstrong v. Kubo & Co., 88 Cal.App. 331, 263 P. 365, 367, this court had occasion to thoroughly consider the cases supporting the rule of law which we have just stated. The cases cited in that opinion are overwhelmingly to this effect, that, where one’s goods are wrongfully taken and used by another, suit in assumpsit for their value, as for goods sold and delivered, may be maintained. We there quoted from the case of Corey v. Struve, 170 Cal. 170, 149 P. 48, as follows: "While the complaint does allege that the property was ‘converted’ by the defendants, we think that the action was in reality one in assumpsit for the value of the property sold, or perhaps it might be more aptly characterized as one in the nature of a suit for money had and received. In this state, one whose goods are wrongfully taken and used by another may sue in assumpsit for their value, as for goods sold and delivered." We also there cited authorities to the effect that in this state there is only one form of action, and that the action cannot be defeated because it may be improperly named.

The same question came before this court in the case of Glantz v. Freedman, 100 Cal.App. 611, 280 P. 704, where the value of certain grapes wrongfully taken was under discussion. We there said: "In such action, the remedy of an action for damages for breach of contract was not plaintiff’s exclusive remedy, and he was entitled to sue for the value of the grapes as for goods sold and delivered." This court again cited a number of authorities showing that, where one’s goods are wrongfully taken and used by another, he may waive the tort and sue in assumpsit for the value of the property. The authorities cited in the two cases decided by this court sufficiently support the right of the plaintiffs in this action to sue in assumpsit, if the action is not otherwise barred. The question is thus presented to us when the liability of a stockholder arises.

In 6 California Jurisprudence, 1014, this question is thus answered: "The liability of a stockholder being one created by law, the statute runs three years after the creation of that liability, and not three years from the time the liability becomes enforceable against the corporation. That is, the liability of the stockholder accrues at the inception of the corporation’s liability, and the statute commences to run from that date. Under the statute a ‘liability’ is created when a contract binding on it is made by the corporation, independently of whether the liability is absolute or contingent or of when the right to enforce it may accrue. * * * The effect of this rule, together with the fact that the liability of the corporation and that of the stockholder are separate and distinct with different periods of limitation in most cases, is that a stockholder may be liable for his proportion of a debt of the corporation even after the cause of action against the corporation itself is barred; and the statute of limitations may have run against the stockholders’ liability before it has run against the corporation, or even before it has accrued against the corporation," etc. The liability, as we have seen, by the admissions of the parties was created by the negotiable warehouse receipts issued for the barley deposited in a Durham warehouse, was created as to one lot on May 3, 1930, and as to the second lot deposited in the same warehouse on May 15, 1930, and as stated in the case of Aronson & Co. v. Pearson, 199 Cal. 286, 249 P. 188, 51 A. L. R. 1380, the stockholder’s liability is a direct and immediate primary obligation independent of any proceedings that might be commenced against the corporation. This case also takes up the right of one prosecuting an action against a stockholder to have an attachment issued and levied upon the property of a stockholder, notwithstanding that the obligation of the corporation has been secured by a mortgage.

It is further said in that case, quoting from the syllabus: "A stockholder’s liability being separate and distinct from the liability of the corporation for its debts, and being based upon contract, a creditor in a suit against the stockholder on his statutory liability * * * may sue the stockholder and attach his property, notwithstanding the mortgage against the corporation."

That the liability of a stockholder is primary and arises immediately upon the incurring of an obligation by the corporation is also sustained by the following cases: Chambers v. Farnham, 182 Cal. 191, 187 P. 732; Gardiner v. Royer, 167 Cal. 238, 139 P. 75; Coulter Dry Goods Co. v. Wentworth, 171 Cal. 500, 153 P. 939. In all these cases it is held that the liability of the stockholder arises coincident with the execution of the contract, whatever it may be, by the corporation, out of which the obligation arises.

In the case of Kennedy v. California Savings Bank, 97 Cal. 93, 31 P. 846, 33 Am. St. Rep. 163, it was held that a stockholder’s liability was within the scope of section 537 of the Code of Civil Procedure, and that an attachment would lie against the property of a stockholder.

The cases of Standard Auto Sales Co. v. Lehman, 43 Cal.App. 763, 186 P. 178, and Young v. Rosenbaum, 39 Cal. 646, likewise support the right of a creditor of a corporation to the issuance of an attachment against the property of a stockholder defendant in an action to enforce a stockholder’s liability under the statute. The motion in the instant case to discharge the attachment is based upon the provisions of section 556 of the Code of Civil Procedure, to wit: That the attachment was improperly and irregularly issued.

The cases which we have cited herein show conclusively that neither of the alleged grounds for discharging the attachment is tenable.

No question was tendered to the trial court as to either count in the complaint being ambiguous, uncertain, or barred by the statute of limitations.

The second count in the complaint alleges that, within two years preceding the filing of the complaint, the corporation become indebted to the plaintiff in the sum for which judgment was demanded. The liability of the defendant arose coincident with the obligation of the corporation. The demurrer, as we have stated, was only general; it did not raise the issue as to any uncertainty as to the time when the obligation arose, or any ambiguity as to the facts constituting the basis of the action; nor did the demurrer interposed by the defendant tender any issue as to whether the cause of action did or did not arise preceding the 4th day of November, 1930. The complaint was filed on the 11th day of May, 1931, from which it follows that the cause of action based upon the negotiable receipts issued on May 3 and May 15, 1930, was well within the limitations of the two years set forth in the complaint. These facts were all before the court at the time it entered its order sustaining the defendant’s demurrer against both causes of action without leave to amend.

What we have stated above conclusively shows that the plaintiff had a cause of action against the defendant, even though the defendant’s contention be admitted as good law that the repeal of section 3 of article 12 of the Constitution on November 4, 1930, took away the plaintiff’s right of action as to the negotiable warehouse receipts issued and delivered to the plaintiff in April, 1931, and that in so doing the court committed reversible error. An examination of the record shows that there was nothing irregular or improper in the issuance of the attachment.

The record shows that the trial court reached the following conclusions:

(1) That a stockholder’s liability was imposed by section 3 of article 12 of the Constitution, which was repealed on November 4, 1930, without a saving clause; (2) that the section of the Constitution was a self-operative provision, and that, when the section was repealed, all existing causes for this liability abated; (3) that section 322 of the Civil Code was repealed by necessary implication, and that no cause of action could arise under that section after the constitutional provision was repealed.

Prior to the repeal, as we have stated, on November 4, 1930, section 3 of article 12 of the Constitution, so far as pertinent here, read as follows: "Each stockholder of a corporation or joint-stock association shall be individually and personally liable for such proportion of all its debts and liabilities contracted or incurred, during the time he was a stockholder, as the amount of stock or shares owned by him bears to the whole of the subscribed capital stock or shares of the corporation or association."

Section 322 of the Civil Code, until its repeal, which we have stated became effective August 14, 1931, read as follows: "Each stockholder of a corporation is individually and personally liable for such proportion of all its debts and liabilities contracted or incurred during the time he was a stockholder as the amount of stock or shares owned by him bears to the whole of the subscribed capital stock or shares of the corporation. Any creditor of the corporation may institute joint or several actions against any of its stockholders, for the proportion of his claim payable by each, and in such action the court must ascertain the proportion of the claim or debt for which each defendant is liable, and a several judgment must be rendered against each, in conformity therewith," etc.

On November 4, 1930, section 1 of article 12 of the Constitution was amended to read as follows: "Section 1. The Legislature shall have power, by general laws and not otherwise, to provide for the formation, organization and regulation of corporations and to prescribe their powers, rights, duties and liabilities and the powers, rights, duties and liabilities of their officers and stockholders or members. All laws now in force in this State concerning corporations and all laws that may be hereafter passed pursuant to this section may be altered from time to time or repealed."

It will be observed that the amendment to section 1 of article 12 of the Constitution does not purport, either in express terms or by implication, to repeal any laws then existing relative to the powers, rights, duties, and liabilities of officers or stockholders or members of corporations. It may be admitted that the intent of the electorate in repealing section 3 of article 12, and amending section 1 of article 12 of the Constitution, intended to give the Legislature absolute or plenary power relative to prescribing the powers, rights, duties, and liabilities of officers and stockholders of corporations, but there is nothing in the amended section which tends to take away any legislative action theretofore taken fixing such rights, duties, liabilities, or obligations. Section 3 of article 12 of the Constitution as it stood prior to November 4, 1930, contained no machinery for the enforcement of the liabilities therein created; nor did the section as it then stood prohibit the Legislature from fixing the same powers, duties, and liabilities, and then provide a procedure for the enforcement thereof.

Section 1 of article 12 of the Constitution, prior to November 4, 1930, read as follows: "Corporations may be formed under general laws, but shall not be created by special act. All laws now in force in the state concerning corporations, and all laws that may be hereafter passed pursuant to this section, may be altered from time to time or repealed." There is nothing in section 1 as it read prior to its repeal on November 4, 1930, which prohibited the Legislature from passing a general law which included in its provisions the same terms as to duties and liabilities of officers and stockholders mentioned in section 3 of article 12 of the Constitution as it then read. The fact that the amendment to section 1 of article 12 of the Constitution gave the Legislature plenary power to legislate as to the rights, duties, obligations, and liabilities, etc., of officers and stockholders of corporations, does not conflict with section 322 of the Civil Code setting forth those rights, duties, and liabilities and the method of enforcement prior to the repeal of the section which became effective August 14, 1931. Under the provisions of section 1 of article 12 of the Constitution as amended, the Legislature might at any session re-enact section 322 of the Civil Code, and, if the power to re-enact section 322 of the Civil Code is given under the provisions of section 1 of article 12 of the Constitution as amended, the conclusion must necessarily follow that there was no conflict between the amended section of the Constitution and section 322 of the Civil Code.

In Gardiner v. Bank of Napa, 160 Cal. 577, 117 P. 667, 670, the court had before it the question of a stockholder’s liability founded upon section 322 of the Civil Code as it existed prior to the adoption of the Constitution of 1879 and section 3 of article 12 of said Constitution.

In considering the question of an alleged conflict between section 3 of article 12 of the Constitution and section 322 of the Civil Code, the court said: "It is urged that the Constitution on this subject is not self-executing, but that it requires legislation to give it effect; that section 322 of the Civil Code is inconsistent with section 3 of article 12 of the Constitution of 1879, and is therefore, under section 1, art. 22, repealed by it, and, since there has been no other legislation on the subject, since the adoption of the new Constitution, to give the constitutional provision effect, that this right of creditors to enforce the personal liability of stockholders has lapsed. Section 1, art. 22, referred to, provides ‘that all laws in force at the adoption of this Constitution, not inconsistent therewith, shall remain in full force and effect until altered or repealed by the Legislature.’ If, therefore, the provisions of section 322, quoted, are not inconsistent with the provisions of article 12, § 3, they are in express terms, continued in force. As we have already seen, they are clearly not inconsistent, but in all respects in harmony. Under both, the stockholder is liable in the aggregate for his proportion of all debts and liabilities of the corporation contracted while he was a stockholder, and no more. The Constitution does not provide how the liability shall be enforced, whether against each stockholder separately, or all jointly, while the statute goes further, and does so provide for its enforcement, and that provision is not inconsistent with the provision of the Constitution, but in the end it reaches the same result. * * * Were section 322 to be formally re-enacted now by the Legislature, would anybody pretend that it would be inconsistent with the constitutional provision now in question in such sense as to render it unconstitutional and void? * * * If it would not be inconsistent, and therefore unconstitutional and void, if formally re-enacted, it cannot be inconsistent, and therefore repealed now."

Section 31 of article 4 of the Constitution of 1849 provided as follows: "Corporations may be formed under general laws, but shall not be created by special act except for municipal purposes. All general laws and special acts passed pursuant to this section may be altered from time to time, or repealed."

Section 36 of the same article read: "Each stockholder of a corporation or joint-stock association shall be individually and personally liable for his proportion of all its debts and liabilities."

Section 322 of the Civil Code was enacted March 21, 1872. Section 3 of article 12 of the Constitution of 1879, so far as applicable here, read as follows: "Each stockholder of a corporation, or joint-stock association, shall be individually and personally liable for such proportion of all its debts and liabilities contracted or incurred, during the time he was a stockholder, as the amount of stock or shares owned by him bears to the whole of the subscribed capital stock or shares of the corporation or association."

Section 1 of article 22 of the Constitution of 1879 is as follows: "That all laws in force at the adoption of this Constitution, not inconsistent therewith, shall remain in full force and effect until altered or repealed by the Legislature; and all rights, actions, prosecutions, claims and contracts of the State, counties, individuals, bodies corporate, not inconsistent therewith, shall continue to be as valid as if this Constitution had not been adopted," etc.

Following a consideration of the different sections of the Constitution of 1849 and 1879, the court, in Gardiner v. Bank of Napa, supra, held that there was no conflict between section 3 of article 12 of the Constitution of 1879 and the provisions of section 322 of the Civil Code enacted in 1872. The wording of section 322 of the Civil Code, in so far as it fixes a liability, is identical with the wording of section 3 of article 12 as it read before being repealed on November 4, 1930. The provisions of the Code then go further and provide, as we have stated, the machinery for enforcing that liability.

It may be further stated that section 1 of article 12 of the Constitution, as amended on November 4, 1930, instead of restricting the powers of the Legislature, really released the Legislature from all constitutional shackles relative to prescribing the powers, rights, duties, and liabilities of corporations, and the rights, duties, and liabilities of officers and stockholders of corporations. In other words, it left the whole matter to the Legislature with plenary powers to fix by statute, all and singular, such rights, powers, duties, and liabilities. Such an amendment and such a liberation of the powers of the Legislature certainly cannot be held to be inconsistent with the exercise by the Legislature of its constitutional powers theretofore existing to enact general laws regulating corporations, etc. That the Legislature has seen fit to repeal section 322 of the Civil Code does not support the conclusion that the section was not in full force and effect until the date of its repeal. The second paragraph of the general corporation law, approved June 12, 1931 (St. 1931, p. 1762, Deering’s Civ. Code, p. 101), reads: "The repeal effected by this act shall not affect the existence of any corporation formed, nor impair or take away any existing cause of action against any corporation, its stockholders, directors or officers, for any liability incurred prior to the time when this act shall go into effect."

In 12 C. J., p. 725, § 97, we find the following: "While a new constitution is by its very nature intended to supersede a prior constitution, it is not intended to supersede the entire body of the statutory law. To the extent, therefore, that existing statutes are not expressly or impliedly repealed by the constitution, they remain in full force and effect." Of course, if the amended Constitution is inconsistent, a repeal by implication necessarily follows, although no mention is made of the inconsistent statute. However, the law is well settled that repeals by implication are not favored, and, if the statute can stand, it will be given full force and effect until expressly repealed by the Legislature.

Again, in construing a constitutional provision, consideration may be given to the intent of the Legislature in adopting an amendment thereto. This intention, however, cannot prevail as against the express language of the amendment. Section 1 of article 12 of the Constitution, as amended in 1930, expresses in its language the full intent of the electorate, and enforces the following conclusion, to wit: That the whole subject of the powers, duties, liabilities, etc., of corporations and stockholders is placed in the hands of the Legislature without any restrictive provisions whatsoever, and embodies no intent to repeal a single section of the Civil Code or any statutory law theretofore existing relative to corporations, but gives the Legislature full power to amend, alter, or repeal any provision of the Code or statutory enactment governing corporations or fixing liabilities thereof, or the duties and liabilities of officers and stockholders.

While the cases of Western Pacific v. Godfrey, 166 Cal. 346, 136 P. 284, Ann. Cas. 1915B, 825, and Wood v. Hamaguchi, 207 Cal. 79, 277 P. 113, 63 A. L. R. 861, and other cases cited by the respondent, speak of the liability of stockholders having its inception in the Constitution, in neither of the cases which we have just mentioned nor any of the cases called to our attention was the power of the Legislature, by enacting section 322 of the Civil Code, fixing likewise the liability of stockholders and providing for the enforcement of that liability, called in question or in anywise limited. Under the sections of the Constitution which we have quoted the Legislature had the general power to enact section 322 of the Civil Code without the aid of section 3 of article 12 of the Constitution. The power of the Legislature, instead of being given by that section, was in fact limited thereby. Such limitation is really the basis of the decision in Wood v. Hamaguchi, supra.

We do not need to enter into a discussion of the case of Martello v. Superior Court, 202 Cal. 400, 261 P. 476, as a reference thereto shows that it is readily distinguishable from the circumstances presented here. That the amendment to section 1 of article 12 of the Constitution was a liberation and not a limitation of the powers of the Legislature, and so intended by the electorate, appears from the following portion of the amendment: "For the purpose of removing existing limitations upon the power granted by section 1 of article twelve of the Constitution, amended as herein proposed, sections 2, 3, 9, 11, 12 and 14 of article twelve of the Constitution are hereby repealed," submitted at the same time and ratified by the People November 4, 1930 (see St. 1929, p. 2239).

That the Legislature, in adopting the Corporation Code (Deering’s Code), p. 101, gave the interpretation to section 322 of the Civil Code as it then stood, which we have herein given, appears from the fact that it expressly exempted from the repealing portions of the general corporation law any rights of actions based on the liability of stockholders, etc., existing at the time that the General Corporation Law should go into effect. No other interpretation can be given than that the Legislature had in mind that stockholder’s liabilities existed just as the Civil Code provided prior to the adoption of the General Corporation Law, and that such liabilities, etc., rights of actions, and causes of action were not intended to be limited, modified, or taken away.

The contention on the part of the respondents that the plaintiff had no right to the issuance of attachment by reason of having filed a claim in the bankruptcy court, and also by reason of a certain bond covering the liability of warehousemen, constituted a security precluding the issuance of attachment herein, is shown by the authorities which we have cited to be untenable.

That the constitutional amendment known as "Section 1 of article XII" did not destroy existing causes of action is definitely settled in the case of Coombes v. Getz, 285 U.S. 434, 52 S.Ct. 435, 76 L.Ed. 866, reversing the decision of the Supreme Court of this state, Coombes v. Franklin, 213 Cal. 164, 1 P.2d 992, 4 P.2d 157, the liability of directors of corporations in that case being held contractual. The same rule applies to the liability of stockholders being contractual; likewise the contractual obligations based upon section 322 of the Civil Code could not be modified or changed, as such rights and liabilities existed at the date of the inception of the contracts and the creation of the liabilities herein referred to, all of which existed prior to August 14, 1931. These questions being definitely settled by the decision of the Supreme Court of the United States, supra, no further discussion thereof on our part would add anything to the established law. See, also, concurring opinion of Presiding Justice Conrey in Regan v. Albin (Cal.App.) 16 P.2d 1029.

Being of the opinion that the complaint stated a cause of action by reason of the law hereinbefore set forth, it follows that the court was in error in sustaining the defendants’ demurrer thereto. By reason of the fact that the complaint is somewhat uncertain in that the dates when the several warehouse certificates were issued are not set forth in the complaint, an amendment thereto should have been allowed. It also appearing that the attachment was neither improperly nor irregularly issued, the order discharging the same was erroneous.

It is therefore ordered: (1) That the judgment of dismissal in this action be reversed; (2) that the order sustaining the defendant’s demurrer to the plaintiff’s complaint, without leave to amend, be reversed, and that the plaintiff be allowed to amend if so advised, in accordance with the facts disclosed and presented to the trial court upon the motion to discharge the attachment; (3) it is further ordered that the order of the trial court dismissing and setting aside the attachment be reversed.

We concur: PULLEN, P. J.; R. L. THOMPSON, J.