« PreviousContinue »
needing other proof. And several persons, though pleading together, must each verify when verification is required,23 unless they are united in interest, in which case verification by the one who is acquainted with the facts, is accepted for both.24
4. Matters of fact.]—A requirement of verification, since its object is to secure authentication of representations of fact, is not extended by construction to an instrument which does not allege matter of fact, but only suggests or interposes objections of law.25 Upon the same principle, under a statute such as is in force in some States, requiring pleas in abatement to be verified, 26 a plea merely stating defendant's right to take advantage of matter in abatement alleged in plaintiff's complaint, has been held not to weed verification.27
5. Necessity — in general.]— The practice of the courts usually requires (even where there is no express statute like that vhich now exists for the case of subsequent pleadings, when the plaintiff's complaint is verified) that applications to the court be made on oath, and (except where, as in the case of mere motions, affidavit is sufficient), the oath should be in the form of a verification annexed to the pleading or petition; 28 but it is discretionary
23 Gray v. Kendall, 10 Abb. Pr. 66.
25 Keabadour v. Weir, 20 Tex. 254 (dispensing with verification of plea which merely gave notice that defendant would take advantage of matter in abatement alleged in plaintiff's complaint).
Thus, under a statute requiring a pleading of fact to be verified, a petition in error need not be verified. Newlove 1. Woodward, 9 Nebr. 502. But where it contains allegations of material facts not appearing in the record, then it must be verified. Hanover v. Sperry, 35 Ohio St. 244.
26 See, for instance, Cherry r. Rawson, 49 Ga. 228; N. Y. Code Civ. Pro.,
In Allen v. Pannell, 51 Tex. 165, the requirement was held to vitiate an unverified plea filed on the day of trial, setting up that the plaintiff had become insane.
27 Keabadour v. Weir, 20 Tex. 254.
In Morrow r. Morrow, 3 Brev. (S. C.) 394, it was held error to strike out such a plea after filing, because, while such a plea should be verified, the intention of the affidavit is to give information to the court and not validity to the plea. Whenever such a plea has been entered, therefore, the presumption is that it was with the consent of the court,
28 In Black v. Auditor, 26 Ark. 237, where a petition for mandamus was refused for want of verification (among other reasons), the court well said: “ The practice appears to be well settled that a jurat is necessary, for, otherwise, the time of the court might be taken up with frivolous applications, or merely for the purpose of obtaining the opinion of the court on a supposed state of facts.
S. P., State v. Hudnall, 2 N. & McC. (S. C.) 419 (prohibition).
with the court whether to act on an unverified pleading or petition,29 if adequate evidence is also presented.
6. Substance of the allegation.]— In the case of a paper other than a pleading, if no particular form for verification is prescribed, it is the safer practice to follow the form prescribed by usage or statute for the verification of pleadings,30 taking care, if it is to be used as proof, to indicate in the allegations what matters, if any, are alleged only on information and belief, and to express the verification positively, with reference to all other matters in such manner as to identify them; as in the form of verification of pleadings under the New York Code of Civil Procedure. $ 526.)
Where there is no express requirement as to form or contents of verification, and no settled practice, an ordinary jurat, like that of an affidavit, has been accepted.31
7. Tests for doubtful cases.]—Where the statute or rule fails, as is frequently the case, to give any clear indication of how erplicit the oath must be, the following generally recognized principles will serve as a guide, due regard being had to the object for which the verification is required; and the language of the various
29 The question was so treated in Baumeister 1. Demuth, 84 Anp. Div. 394, 82 N. Y. Supp. 831, aff'd, 178 N. Y. 630; Schermehorn i. L'Espenasse, 2 Dall. 360; Hawkins 1. Hunt, 14 III. 42; Laughlin v. Lamasco City, 6 Ind. 223; Parsel v. Barnes, 25 Ark. 261.
McDougal 1". City of Brazil, 83 Ind. 211. (holding it error to strike out executor's answer alleging payment, as defense to suit to compel payment of tax, because unverified).
Martin v. Porter, 4 Heisk. (Tenn.) 407.
Hunter 1. Robinson, 5 W. Va. 272 (accepting affidavit made part of the bill as substantial compliance).
In Kelly's Application, 10 Abb. Pr. 208, the court say, on application to compel payment of personal tax: “Application to courts for process of imprisonment are generally, if not universally, on affidavits, and there is nothing in the statute excepting this proceeding from the general rule."
In Moore 1. Cheeseman, 23 Mich. 332, the court below sustained a demurrer to a bill to annul a deed on the ground that the bill was not sworn to. Held, error. The court said: “There is no rule requiring bills in cases of general equity cognizance to be sworn to. Bills that attempt to remove into a court of equity matters cognizable in a court of law, and bills in cases requiring the preliminary aid of the court upon facts stated in the bill, if the facts are not otherwise substantiated, should be verified.”
30 State v. Day, 57 is. 655.
31 Parker v. Clark, 7 W. Va. 467, 472; Hickman v. Painter, 11 id. 356, State v. Wright, 10 Nev, 167; Chevallier v. Williams, 2 Tex. 239.
Contra, Friedlander v, Pollock, 5 Coldw. (Tenn.) 490.
provisions of the New York Code of Civil Procedure, requiring verification, is appended in a note, that the reader may test the applications of these principles :—32
8. -- verification of truth.]— Even where the requirement of a verification is that it state that the instrument “is in all respects just and true," the addition in the verification of the qualifying words, “ to the best of his knowledge and belief,” does not vitiate.33 But where the statutory requirement is that the party's
32 By N. Y. Code Civ. Pro., § 526, the verification of a pleading in an action must be to the effect “ that the pleading is true to the knowledge of the deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true."
For forms of verifications of pleadings, see chapter on PlEADINGS.
For bill of particulars by an affidavit "to the effect, that he believes it to be true." (§ 531.)
Other provisions of the statute apply the same requirement to verifications of pleadings in the surrogate's court is 2534), verifications in summary proceedings to dispossess (88 2235, 2244), of return by party to alternative writ of prohibition ( 8 2098), petition to change name (§ 2412), or for sale of real estate of infant, etc. (8 2350).
For statement to judgment by confession, “ that the matters of fact therein set forth are true.” Id., § 1274.
For petition for habeas corpus the “oath of the petitioner to the effect that he believes it to be true.” Id., 8 2019.
For petitions for insolvent's discharge or exemption from arrest “to the effect that the petition is in all respects true in matter of fact.” Id., 88 2151, 2189.
For appointment of trustee to take care of prisoner's property, “to the effect that the matters of fact therein stated are true, to the best of the petitioner's knowledge and belief.” Id., 8 2222.
To discover the death of a life tenant,“ to the effect that the matters of fact therein set forth are true.” Id., $ 2303.
For the appointment of a committee of a lunatic, “to the effect that the matters of fact therein stated are true.” Id., $ 2325.
Return to writ of habeas corpus is to be verified (except in case of a return by an officer), “by his oath," Id., & 2026; but the return must state the facts positively.
33 Pratt v. Stevens, 94 N Y. 387, rev'g 26 Hun, 229 (oath to schedules of assignor for benefit of creditors). The court say (per MILLER, J.): “ We think that the addition made was not in contravention of the statute, and that the language employed was a substantial compliance with the same. The statute prescribes no particular form, and it is not required that the affidavit shall be absolute and unqualified. * * * If the construction insisted upon is correct, the want of knowledge of a single fact would prevent the debtor from making the affidavit. * * * The general rule is that an oath taken before a competent officer merely verifies the truth of the facts stated, according to the best knowledge, information, and belief of the affiant. The positive affirmation of the fact sworn to in an affidavit is in most cases supposed and understood to be according to the best knowledge, information, and belief of the witness. In the case at bar this would be so if the state. ment made was unqualified. It is not any the less so because it is qualified. The statute requires that the values must be given by the debtor according to his best knowledge, and as such values may depend upon information
oath must be “that the matters therein set forth are true," a verification that "he believes " they are true is bad.34
9. — verification merely. ]- If the requirement is simply of verification by the oath or affirmation of the party, a positive declaration that the statements are true is enough without any further expression to show that the party has personal knowledge. 38 Otherwise if made by a stranger.
10. — to deponent's knowledge.]— A requirement of verification upon the knowledge of the deponent is satisfied by a substantial indication of knowledge, such as saying that he “knows the contents” of the paper, and that the same is true; 37 but it is not eatisfied by a general allegation of truth, not indicating his knowledge.38 A verification purporting to be on knowledge is rendered ineffective by adding alleged “sources of deponent's information ” which disclose that he has no actual knowledge. 39
and belief, it is difficult to see how they can be given as absolutely true. The affidavit here is as absolute in fact and in law as if the additions made had not been inserted."
S. P., Gibbons v. Sheppard, 2 Brewst. 1; Large v. Keen's Creek Co., 30 Ind. 263; Jackson v. Webster, 6 Munf. (Va.) 462.
Pratt v. Stevens (above), overrules in effect Van Horn v. Montgomery, 5 How. Pr. 233, which was to the contrary. So also were Seitz v. Miles, 16 Mich. 456; Benedict t. Hall, 76 N. C. 113. But in these last two cases the verification was, perhaps, held defective merely because it was offered as proof of facts alleged. "See Hadley v. Watson (Mass., 1886), 3 New Eng. Rep. 367.
34 Ingram 1'. Robbins, 33 N. Y. 409.
35 Stating that the “facts” were true, instead of " matters," was held suffi. cient in Whelpley t. Van Epps, 9 Paige, 332. In Lewis v. Winston, 26 La. Ann. 707, an affidavit that the allegations are true was held sufficient under statute requiring it to state that all the allegations are true.
36 Arata v. Tellurium, etc., Co., 3 West Coast Rep. 151 (verification of mechanics' lien).
Election Cases, 65 Pa. St. 20 (election petition).
Where under such a requirement the usual form for verification of pleadings (including the addition “except as to matters therein stated on information," etc.,) was followed, it was held nevertheless sufficient, in Kirk V. Rhoads, 46 Cal. 398, 403 (election contest).
In Carpenter v. Providence Washington Ins, Co., 4 How. (U. S.) 185, 217, the rule that an oflicer of a corporation may verify its answer was held to sustain an answer sworn to "according to the best of his knowledge and belief” only, made by the president, who had not come into office when the alleged transaction took place.
37 Matter of Macaulay, 94 N. Y. 574.
38 Sexaner 1. Bowen, io Abb. Pr. (N. S.) 335, 3 Daly, 405 (verification of pleading); Williams v. Reil, 11 How. Pr. 374.
39 Moran v. Helf, 52 App. Div. 481, 65 N. Y. Supp. 113; Morris v. Fowler, 99 App. Div. 245, 90 N. Y. Supp. 918.
If deponent swears he has read the pleading and knows the contents, an allegation that they are true implies that they are so to his knowledge; and conversely, if he swears they are true to his knowledge, except, etc., this implies sufficiently that he has read the pleading or heard it read, and knows the contents. 40
11. Title.] — If, as is usual, the verification is underwritten or indorsed on the document it verifies, and refers to it as foregoing or within, no separate caption or title is necessary. 41
12. Venue.]- A venue is as essential as in the case of any other affidavit.42
13. Who to make.]— Where the requirement is general — of proof by oath or affirmation, without saying whose — the court may act on verification by attorney, solicitor, 43 or counseł. Where the oath of a party is required the court may accept that of the real party in interest, 44 but should not accept that of the attorney as a full substitute for that of the party, if the requirement of the party's oath was for the purpose of guarding against collusion.45 But if the statute does not preclude, the court have power on special application to allow a petition which ought to be verified in person, to be verified by the attorney or solicitor provisionally until the party can himself be sworn ; 46 though where an interference with the client's property interests are sought, the court may refuse to act upon the petition so verified until proof of attorney's authority be supplied.“
40 Patterson 0. Ely, 19 Cal. 28. 41 Levy r. Wilson, 43 Iowa, 605; Cook v. Yarwood, 41 Ill. 115. 42 Lane r. Morse, 6 How. Pr. 394. See p. 13 of this volume. In Brotton v. Allston, 2 West. L. Monthly, 588, the lack of a venue to the verification was supplied by looking to a venue which in that case appeared on the petition.
43 Graves 1. Dale, 1 Monr. 190. (Demurrer: solicitor's oath to bill held sufficient.) But reason or excuse should be shown for substituting the oath of attorney for that of party. Reid v. Hoffman, 6 Heisk. (Tenn.) 440.
44 Taber r. Gardner, 6 Abb. Pr. (N. S.) 147 (holding that the word “ party" in Code Pro., $ 157, embraces the person for whose benefit the suit is brought. Order striking out answer for insufficient verification, reversed).
45 Bloomfield v. Ketcham, 95 N. Y. 657, 5 Civ. Pro, Rep. (Browne), 407 (holding it error to accept attorney's affidavit to submission of facts agreed, for decision under N. Y. Code Civ. Pro., § 1279).
46 Bruce v. Bruce, L. R. 6 Prob. & Div. 16; S. C., 29 Wkly. Rep. 474. (Petition for dissolution of marriage.) 47 Matter of Stephani, 75 Hun, 188, 26 N. Y. Supp. 1039.