California Supreme Court, 1858

Whitwell v. Thomas

California Supreme Court · Decided July 1, 1858 · Burnett, Field, Terry

9 Cal. 499

Cases that cite this one

3 later published cases cite this decision.

Zany v. Rawhide Gold Mining Co. (Cal. Ct. App. 1911)
Grangers' Union v. Ashe (Cal. Ct. App. 1910)
Wallace v. Baisley (Or. 1892)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Field, J., delivered the opinion of the Court—Terry, C. J., and Burnett, J., concurring.

The only question for consideration is, whether any material averment of the complaint is denied by the answer. The test *500of materiality is this: Could the averment be striken from the pleading without leaving it insufficient ? (Practice Act, § 66.) Judged by this test, the averment of copartnership is immaterial. The complaint would be sufficient if this were stricken out. The execution of the notos—not the copartnership of the defendants at the time, constitutes the material averment, and this is not controverted.

Judgment affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.