Inches v. Van Valkenburg — 2 Cal. Dist. Ct. 27

Majority

p. 27

INCHES vs. VAN VALKENBURG.

Fourth District Court for San Francisco Co.,

Dec. T. 1857.

Headnote

ATTACHMENT — RENT—EJECTMENT.

An action to recover real property, ront in arrear duo upon a lease of the same property and damages, is not an action upon a contract for a direct payment of money within the meaning of our attachment law, and it is irregular to issue an attachment thereon, and attach defondant’s property as security for the satisfaction of the judgment plaintiff may recover.

Motion to discharge an attachment on the ground that it could not he issued in an action of ejectment.

The complaint contained but one count, for the recovery of the possession of real property, rent in arrear due on a lease of the same and damages for the detention thereof.

• A. T. 'Willson, for plaintiff.

H. S. Love, for defendant.

— This action is brought to recover the possession of real estate, rent in arrear and damages. The complaint contains but one count in which the different causes of action are set forth, but they are not separately stated, as is required by § 64 of the practice act. It is alleged that the rent in arrear is due upon a contract of lease, and plaintiff contends that he is entitled to an attachment under the provisions of our statute. The principal relief sought is the recovery of the real estate; subordinate and dependent upon that is the claim for rent and damages. Should plaintiff fail to recover possession of the property, he cannot, upon this complaint, recover either the rent or the damages claimed.- The action is not then upon an express or implied contract for the direct payment of money within the meaning of ■ the attachment law.

The writ of attachment was issued without authority of law, and must be discharged.