The defendants have appealed from a judgment by default, which was rendered against them in a suit in assumpsit, after their answer had been stricken from the files on the theory that it was sham and not properly verified as required by section 446 of the Code of Civil Procedure. The respondent has filed no brief on appeal.
The complaint is couched in five counts and alleges that the individual defendants are engaged in business as co-partners under the firm name of Terrill & Sartain; that the Colusa County Bank was insolvent and in the process of liquidation, in charge of the State Superintendent of Banks; that on August 16, 1937, the defendants executed and delivered [56 Cal. App. 2d 926] to the said bank five separate written acknowledgments of their indebtedness to that bank of unpaid portions of five different promissory notes previously executed by "Terrill & Sartain, by Anna B. Sartain" at various dates and for different amounts ranging from $410 to $8,000. Each document specifies a sum which is acknowledged to be due and unpaid to the bank on account of the particular note therein described, on August 16, 1937, which is the date of said instruments. Each agreement sets out verbatim the note upon which it is founded. The specified aggregate unpaid sum of said notes at the time of execution of said acknowledgments was $4,806.61. The aggregate sum for which the notes were originally executed is $15,910. Three of the notes were dated in 1930. Two of them were executed in 1932. Each note bears 8 per cent interest and provides for 10 per cent of the amount of indebtedness as attorney's fees in the event of the necessity of bringing suit. The notes matured one day after the date of their execution. It is alleged that, for a valuable consideration, the State Superintendent of Banks assigned and transferred to the plaintiff "the claim herein sued upon."
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The complaint fails to allege that said notes represent indebtedness of the partnership, Terrill & Sartain; it fails to allege by what authority, if any, Anna B. Sartain signed either the notes or the written acknowledgments of indebtedness. The complaint further fails to allege that said indebtedness was due or unpaid at the time of the commencement of this action on May 6, 1940.
The defendants filed a general and special demurrer to the complaint upon the grounds, among others, that the complaint fails to state facts sufficient to constitute a cause of action; that it cannot be ascertained therefrom by what authority, if any, Anna B. Sartain signed the promissory notes or the written acknowledgments of indebtedness, and that it cannot be determined from said complaint what amount of indebtedness, if any, is due or unpaid to the holder of said promissory notes. The demurrer was overruled. The defendants filed their answer denying the material allegations of the complaint. It specifically denied that the defendants were engaged in business as a copartnership; that Anna B. Sartain was authorized to or did sign said promissory notes or agreements acknowledging their indebtedness as the agent of either a co-partnership or of the other named defendants, [56 Cal. App. 2d 927] and denied that any amount was due or unpaid upon any of said notes or written acknowledgments of indebtedness. This answer was verified by the defendants' attorney, under the provisions of section 446 of the Code of Civil Procedure, by stating that he did so because his clients were "not at that time present within the Town of Colusa," where he maintained his office, and that he was therefore unable to obtain their verification. The attorney then stated in his verification that:
"He has read the foregoing Answer and knows the contents thereof, and that the same is true of his own knowledge except as to such matters as are therein stated upon information and belief and as to such matters he believes the same to be true."
[1] The verification of the original answer sufficiently complies with section 446 of the Code of Civil Procedure. The attorney avers that he knows the contents of the answer and that "the same is true of his own knowledge." It is true that the verification is defective with respect to one ground since it is averred that the defendants were merely absent from the townof Colusa, and not from the county, as the statute requires. The section, however, authorizes the attorney to verify a pleading under any one of three contingencies, namely: (1) when the client is absent from the county where he maintains his office, (2) when, for some cause, the client is unable to verify the pleading, and (3) when "the facts are within the knowledge of his attorney." (Brown v. Sandell, 79 Cal. App. 313, 316 [249 P. 209].) In the present case the verification complies with the last-mentioned contingency, and the court was not authorized to strike the answer from the files on that account.
The plaintiff served upon the defendants a notice of intention to move the court on October 7, 1940, under section 437c of the Code of Civil Procedure, to strike the original answer from the files as sham and because it lacked a valid verification. That notice also informed the defendants that plaintiff would then move the court for judgment as prayed for. The notice was accompanied by affidavits of the plaintiff and his attorney. A counteraffidavit was filed by the defendants.
On the 7th day of October, prior to the time set for the hearing of said motions, out of precaution and for fear the verification to their answer might be defective, the defendants [56 Cal. App. 2d 928] filed and served an amended answer under the provisions of section 472 of the Code of Civil Procedure duly verified by three of the defendants in person. The amended answer is an exact duplicate of the original answer, except for the verification thereof. The amended answer has not been stricken from the files but still remains of record.
Thereafter the defendants' attorney appeared in court at the time and place set for the hearing of said motions. Neither the plaintiff nor his attorney appeared at that time or at all, to present said motions to the court. They were never orally presented to the court. It is true the plaintiff's attorney previously wrote a letter to the judge saying that plaintiff would not be present, but that he would submit the motions on the records on file. Over objection by the defendants the court proceeded to consider the motions. The plaintiff's affidavits merely aver that he and his attorney interviewed Anna B. Sartain on May 24, 1940, and that she then admitted the existence of the copartnership consisting of the individual defendants, except that Charles M. Terrill had subsequently died. It was also averred that she also admitted the partners then owed the amounts of money specified in the written acknowledgments described in the complaint. No further evidence was adduced at that hearing. The court thereupon took the purported motions under submission.
Without further hearing or evidence, on October 28, 1940, the court made its order granting plaintiff's motion striking defendants' original answer from the files and directing the entry of defendants' default for failure to answer the complaint. Thereupon judgment was rendered against the defendants by default for the aggregate sum of $4,806.61, together with the further sum of $728.99 as attorney's fees.
The appellants contend that the court erred in overruling their demurrer to the complaint; that the court erred in considering and granting plaintiff's motions to strike the answer from the files, to enter the default of the defendants, and to render judgment against them by default, without the actual presentation of said motions in open court and without competent evidence adduced.
The notice of appeal is from the order made by the court [56 Cal. App. 2d 929] on October 14, 1940, striking the answer from the files, and also from the judgment which was rendered and entered by default against the defendants on October 28, 1940.
[2] It has been uniformly held an appeal does not ordinarily lie from an order sustaining or overruling a demurrer, or from an order striking a pleading from the record. Such rulings are reviewable only on appeal from the judgment. (Wood, Curtis v. Co. Missouri Pac. Ry. Co., 152 Cal. 344 [92 P. 868]; Bryant v. Kelly, 203 Cal. 721 [265 P. 817]; Harmon v. De Turk, 176 Cal. 758 [169 P. 680]; 2 Cal.Jur. 156, 26.) The purported appeal from the order striking the answer from the files is therefore dismissed. That order and the order overruling defendants' demurrer to the complaint will however be reviewed on the appeal from the judgment.
[3] The court erred in overruling defendants' demurrer to the complaint. The complaint contains no allegation that the promissory notes and the written acknowledgments of indebtedness which were made on August 16, 1937, were not thereafter fully paid, or that they were due and unpaid. There is no statement in the pleading that any sum whatever was due or unpaid at the time of the filing of the complaint. The only allegation which the complaint contains in that regard is found in paragraph IX, which reads:
"That prior to the institution of suit plaintiff demanded of defendants the payment of the sum in the within cause of action sued upon, but defendants failed, neglected and refused to pay same, and still fail, neglect and refuse so to do."
It is apparent that the failure to pay plaintiff's demands may have been properly refused because the obligations were previously fully paid and that they were not then due or owing. It will be observed the complaint does not even allege that the demands were wrongfully denied or refused. The demurrer was both general and special. It asserts that the complaint fails to state facts sufficient to constitute a cause of action, and that "it can not be ascertained what amount, if any, is due and owing from defendants."
It has been frequently held that a complaint based upon a breach of contract or an obligation to pay a stated sum of money must necessarily allege nonpayment of the money in order to state a cause of action. (Poetker v. Lowry, 25 Cal. App. 616 [144 P. 981]; Dunham v. McDonald, 34 Cal. [56 Cal. App. 2d 930] App. 744, 749 [168 P. 1063]; 18 Cal.Jur. 374, 635.) In the Poetker case, supra, the complaint merely alleged, in the identical language employed in the present case, "that defendant has refused and still refuses to pay the same." The judgment in that case was reversed for error in overruling the demurrer. The court said: 152ee80cbc
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