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Brown v. Leavenworth

2 Cal. Dist. Ct. 87 Court Fourth District Court for San Francisco Co., English

Delivered by HaueR, J.

Contents

Majority

p. 87
BROWN vs. LEAVENWORTH.
Fourth District Court for San Francisco Co.,
Dec. T., 1857.

Headnote

AFFIDAVIT — DEFAULT.
An affidavit of merits-and facts to open a default is not sufficient if sworn to on information and belief, — the affidavit of the informant or the grounds of belief should also be offered.
This was a motion on the part of the defendant to open a default entered against him, and an affidavit of his attorney was read upon which the motion was based. It recited facts the information of which were derived from defendant, but failed to present the affidavit of defendant corroborating this information. There was nothing before the court to warrant a belief in the information.
McDougal •§• Sharp,fot plaintiff.
J. V. Wattson for defendant.

— The affidavit relied upon for opening the default is made by the attorney, and the material allegations are mostly upon the information of the defendant, Leavenworth. As I ruled in the case of Smiley v. Fulda[1] the allegations should be positively sworn to, or, if upon information and belief, the affidavit of the informant should also be procured. Leavenworth should have made or joiagd in this affidavit, to entitle it to a favorable consideration. Motion denied.

* Ante p. 84.