A. St. CLAIR DENVER v. C. H. BURTON, JOHN E. P. SPILLMAN, JEFFERSON WILCOXSON, JACKSON WILCOXSON, REDDINGTON & WILLIAMS, JOHN BURTON, and Ed. McCARTY, 28 Cal. 549

By the Court, Sawyer, J. There is no direct allegation in'the complaint that, at the time judgment by confession was entered against Éurton & McCarty in favor of the plaintiff, the money for which judgment was confessed was unpaid or then due. It was assumed, but not averred, that the money was due, and on that assumption the amount stated. This mode of statement is insufficient. (Halleck v. Mixer, 16 Cal. 577.) In an action to secure a priority of lien over Wilcoxson, who subsequently obtained the proceeds of sale of defendants’ property under his own judgment, such an allegation is, in our opinion, material.

For this defect the complaint does not state facts sufficient to constitute a cause of action, and the demurrer was properly sustained. Judgment affirmed.