The record-union., 1898-12-10

corpus, reported in the 12Utn Cal. page
316. The question was not disposed Of
by the court in this last case, however,
for the reason that the court found the
affidavit upon which the order of ar
rest was based, to be insufficient in 9TH
er particulars. The opinion of the
court in this case, however, in its crit
icism of the affidavit, convinces me that
the plaintiff should be held to the strict
requirements of the statute, because she
is seeking an extraordinary remedy
which should not be granted unless she
brings herself squarely within the re-
quirements of the law; and as has al
ready been said, the filing of a suffi-
cient affidavit is jurisdictional, and it is
we'll settled that when the law requires
the performance of any act as precedent
to the requirement of jurisdiction by
the court, strict compliance Herewith
must be had; otherwise the court does
not acquire jurisdiction.
The affidavit in the case at bar is too
yoluminous to be quoted in full in this
opinion. A careful examination there
of, however, discloses that there is no
statement in the affidavit, of the pend
ency of plaintiffs action against the
defendants, nor does the affidavit state,
in so many words, that the plaintiff has
good cause of action, on the merits,
against the defendant. The affidavit
does state the confidential relations
which exist between the parties, and
then proceeds to state some of the facts
and circumstances under which it is
alleged the defendants obtained pos
session of the sum of S21 300 from the
plaintiff; but this statement of facts is
unquestionably insufficient to. consti-
tute a cause Of action in favor of
the plaintiff and against the defendant
If the affidavit were treated as a COM
plant, because it does not sufficiently
appear that plaintiff parted with her
money by reason of said confidential re-
lations existing between the parties and
by reason of the promises and repre-
sentations of the defendant nor does
it sufficiently appear that, at the time
OF making such representations and
promises, the defendants did not in
tend to perform the same. In the opin-
ion of the court, it is necessary for the
plaintiff, in such affidavit, to state all
of the facts concerning the cause of
action with the same degree of clear
ness and certainty which is required of
plaintiff in stating the facts of her
cause of action in her complaint.
The court is of the opinion that the
affidavit is insufficient to bring the case
within the requirements of Subdivision
1 of Section 479 C. C. P, because said
affidavit does not sufficiently state that
the defendant is about to depart from
1l0cr
plaintiff or any other creditor of the
defendant
Said affidavit is insufficient to bring
the case within the provisions of Sub
division Of Section 479 c.. c. P, for
the reason that said affidavit does not
contain sufficient statement of the
facts whereby it is claimed that the de-
PENDANTS were guilty of a fraud upon
the plaintiff in contracting the debt or
obligation the subject matter of plain
tiffs action. AS / have before stated,
If plaintiff complaint contained the
same statement of facts as constituting
her cause of action, and in the same
manner as they are stated in said affi-
davit, said complaint would be suscep-
tible to. a demurrer for want of suffi-
cient facts.
For these reasons, and because said
affidavit does not show the tendency of
plaintiffs action at the time of the ap-
plication for the order of arrest, and
does not contain IAN affidavit of mer-
it's am of the opinion that the court
never acquired jurisdiction to issue the
order of arrest, and that the defend
ant is entitled to her discharge; and it
is so ordered.
Dated, this-7th day of December, 1893.
~ JOSEPH w. HUGHES,
Judge of the Superior Court.