- Bookmark
- Share
- CaseIQ
Gibbons v. Scott
1. The complaint does not aver compliance with the terms of the executory agreement, set forth as a good defence to the original action. The averment of payment of the note givenGibbons, amounts to nothing, for, non constat that the respondents ever received any consideration for the note, and they were obliged to pay it because in the hands of a third party. A mere technical defence will not avail appellant; and he must be deemed to have stated his case as strongly as it will bear. (Gregory v. Ford, 14 Cal. 138; Green v. Covillaud, 10 Cal. 317 .)
2. There being no error in the record, this Court will not reverse simply to enable plaintiff to amend his complaint.
JUDGES: Cope, J., delivered the opinion of the Court. Field, C. J., concurring.
OPINION
COPE, Judge
This is a suit in equity to set aside a judgment of the District Court of the Tenth Judicial District. The judgment was rendered in September, 1853, and the record shows that there was a personal service of the summons, and a copy of the complaint. The plaintiff alleges that no such service was in fact ever made, and that he had no notice of the proceedings until long after the rendition of the judgment. He further alleges that the officer who certified to the service, and the sureties upon his official bond, are insolvent. So far, the case falls exactly within the rule laid down in Gregory v. Ford, 14 Cal. 138; but the plaintiff goes further, and alleges that he had a valid defence to the action, of which he claims that in equity and justice he should still be permitted to avail himself. But the allegations in relation to this defence are insufficient. The defence is founded upon an executory agreement, by the terms of which certain things were to be done by the plaintiff, and in consideration thereof, he was to be relieved from the debt for which the action was brought. It is not alleged that any of these things were performed by him, or that he ever offered, or was, or has been, at any time, ready or willing to perform the same.
We have no right to reverse the judgment for the purpose of affording the plaintiff an opportunity to amend his complaint. He did not offer to amend in the Court below, and there is nothing in the record to justify a reversal.
Judgment affirmed.
Alert