Staples

This, is an appeal from an order overruling defendant’s motion for a new trial. The cause was originally submitted in Department One, where the order appealed from was reversed upon grounds stated in an opinion by Commissioner Foote. ( 23 Pac. Rep. 710 .)

Afier a rehearing and a more careful consideration of the record, we find it necessary to modify in some particulars the statement of the case as then made.

The facts are as follows: On the first day of August, 1881, in the superior court of Santa Clara County, the plaintiff and respondent herein recovered a judgment against the Santa Clara Mining Association of Balti *182 more, a foreign corporation, for five thousand dollars, upon which execution was issued and returned unsatisfied. She then— proceeding under sections 717, 718, 719, and 720 of the Code of Civil Procedure — cited this defendant to answer as to his indebtedness to the corporation, and in due course obtained an order from the superior court, authorizing her to institute and prosecute an action to recover any indebtedness owing by said defendant to said corporation. In pursuance of that order, she commenced this action in October, 1881.

In her complaint she sets…