Page images
PDF
EPUB

A verification on behalf of a corporation is made by its officer, 48 and on behalf of an infant, by the guardian ad litem; in either case this satisfies the requirement of a verification by the “party;" and may be in the form appropriate for a party only to use, i. e., may omit stating grounds of belief as to all matters not stated on knowledge, and reason why party does not verify.4

49

So a verification on behalf of a person of unsound mind may be by his guardian, the fact of mental incapacity appearing on the face of the papers, and the court exercising its discretion as to the necessity of personal examination, or evidence of intelligenceso

14. Allegation of character of party. ]— The principle that requires a distinct allegation of the character of an affiant, so as to show his relation to the cause, does not apply to a verification made by a party named as such in the instrument to which the verification is appended Here mere description as a party is enough. But it does apply to the case of a verification by a third person, on excuse shown for non-verification by the party. Here the fact of being agent, attorney or officer should be sworn to; although in case of a public officer of whom the court may take judicial notice, the omission does not vitiate.

15. Several parties.] It is not essential that a petition by several persons be verified by all, if they are united in interest, unless the statute or rule of court requires each to verify; for the court may accept and act on a verification by one only, if the reason why the others do not join is sworn to. In such cases

48 A railroad company's attorney, appointed to verify petitions in condemnation proceedings, is such an officer.” Matter of St. L. & Ad. R. Co., 133 N. Y. 270. So is a director. Eastham . York State Tel. Co., 86 App. Div. 562, 83 N. Y. Supp. 1019. A “ general manager," without further description of his powers and duties, is not. Meton v. Isham, 4 N. Y. Supp. 215, 15 Civ. Pro. Rep. 259.

49 N. Y. Code Civ. Pro., $ 526; Clay_v. Baker, 41 Hun, 58 (guardian ad litem); Henry v. Brooklyn Heights R. R. Co., 43 Misc. 589, 89 N. Y. Supp. 525 (domestic corporation). Robinson v. Ecuador Devel. Co., 32 Misc. 106, 65 N. Y. Supp. 427 (contra, as to foreign corporations).

50 People ex rel. Norton 1. N. Y. Hospital, 3 Abb. N. C. 229, and note. 61 Levy v. Wilson, 43 Iowa, 605 (verification of answer). 8. P., Blaiberg v. Parke, 48 L. T. R. (N. S.) 311 (verification of bill of sale).

In Brotton v. Allston, 2 West. L. Monthly, 588, a statement that "the party” appeared and made oath to the petition, was held sufficiently to show that the plaintiff did.

58

the court will usually proceed by analogy to the statute or practice regulating the verification of pleadings.52

Persons sought to be charged on the same facts are regarded as united in interest within the principle allowing one to verify; but persons whose liability is dependent on different facts on which one may have recourse over against the other, such as the maker and indorser of negotiable paper, are not. 54

16. Signature.]— The affidavit of verification should be signed by the affiant; but a pleading or petition duly signed by the party or attorney is not to be disregarded by the adverse party as a nullity, merely because the verification is not also signed by the affiant. But the court should not act on an unsigned verification as proof.

17. Who may administer oath.]— The rules as to who may generally administer oaths, are applicable. In New York and some other jurisdictions, it is not allowable, and elsewhere it is 110t generally safe practice, to take a verification before the attorney of record.56

52 N. Y. Code Civ. Pro., § 525. (If two or more parties are pleading together and are united in interest, one of them who is acquainted with the facts may verify.)

53 So held of joint wrongdoers. Zoellner v. Newberger, 1 N. Y. Monthly L. Bul. 29; Mooney v. Ryerson, 8 N. Y. Civ. Pro. 435.

Verification by one of two complainants, " that the facts set forth in the bill, so far as they relate to his act and deed, are true, and so far as they relate to the act and deed of others, he believes them to be true," heid suflicient. Harper v. Whitehead, 33 Ga. 138; S. P., Clark v. Croft, 51 id. 368.

54 Andrews v. Storms, 5 Sandf. (7 N. Y. Super. Ct.) 609.

06 Place v. Yonkers, 43 App. Div. 380, 60 N. Y. Supp. 171; Smith v. Benton, 15 Mo. 371; Alford v. McCormac, 90 N. C. 151.

Contra, as to a pleading, under N. Y. Code, $ 528; Laimbeer v. Allen, 2 Sandf. 648 (holding, however, that in order to disregard, notice of intent to treat it as a nullity must be given). Nave v. Ritter, 41 Ind. 301.

In Pincers r. Robertson, 9 C. E. Green, 348, an answer was suppressed because neither it nor the verification was signed. The court say: practice of this court requires that where the verification of an answer is in the form of an affidavit, the name of the deponent must be subscribed at the foot of the affidavit, and where in the form of a certificate of the officer, the answer must be signed by the party."

56 Gilmore v. Hempstead, 4 How. Pr. 153; Post v. Coleman, 9 id. 64; Warner 1. Warner, 11 Kans. 121 (petition struck out for so doing).

Meade v. Thorne, 2 West. L. Monthly, 312. Contra. Kuhland 1. Sedgwick, 17 Cal. 123. The verification so taken is not roid. Baumeister v. Demuth, 84 App. Div. 394, 82 N. Y. Supp. 831, aff’d, 178 N. Y. 630.

" The

18. Authentication.]— In respect to administration of oath and authentication, a verification is an affidavit and subject to rules already stated on that subject. 57

19. — of exhibits.]— Schedules or exhibits annexed to, and properly referred to in the document which is verified, do not need to be separately verified.58

60

20. Waiver.]— Where verification is required as the foundation of jurisdiction on making an application to the court or judge, an omission of verification, or such a defect as amounts to failure to comply with the requirement, is a jurisdictional defect, and is not waived by proceeding, unless it be supplied.59 But where jurisdiction otherwise exists, and verification is required as an assurance of good faith or for the prevention of sham or false pleading, omission or defect is waived by neglect to object with reasonable promptitude.

Where verification is used as proof on which the court acts - as for instance in issuing an attachment or injunction — a party who, on a hearing and opportunity to object, does not object specifically to a defective verification, waives formal objections to authentication; but if the verification, aided by such waiver, proves anything, the sufficiency of the evidence afforded by it remains a question which may be reviewed on appeal, notwithstanding the omission of specific objection.

21. Collateral attack.]— When proceedings founded on a verification are collaterally questioned, formal defects in verification may be aided by the usual presumptions of regularity. 61

67 Pages 13, 17, of this volume.

58 Ely r. Frisbie, 17 Cal. 250 (reversing judgment for refusal to allow such copies to be read).

59 Luther v. Brison, 4 Monthly L. Bul. 91; Williamson v. Williamson, 3 N. Y. Civ. Pro. Rep. 69, 64 How. Pr. 450.

60 Schwartz v. Oppold, 74 N. Y. 307 (objection cannot be taken at trial). Paddock v. Palmer, 32 Misc. 426, 66 N. Y. Supp. 743.

61 Crosier 0. Cornell Steamboat Co., 27 Hun, 215. A petition for letters of administration, held (in an action by the administrators) sufficiently verified to confer jurisdiction on the surrogate, although there was no affidavit of verification but a simple venue and jurat to the petition itself.

Schermerhorn v. Talman, 14 N. Y. 93. (Jurats attached to a petition and schedules of a bankrupt presumed to have been verified in court, if not proved otherwise.)

22. Inconsistency.]— Where the allegations and the verifications are inconsistent — as where an answer denying partnership was verified by an attorney who alleged that his information came from a partner62— or where a pleading denies knowledge or information sufficient to form a belief as to any fact, and the verification alleges that the facts are within the depondent's knowledge, 63 the pleading may be struck out as sham.

23. Falsity.]— The falsity of a verification when made, though made in expectation that acts intended to be subsequently done would make its statements true -- as where creditors signing a petition in bankruptcy swear that others had signed, in anticipation that they would — is good ground for setting aside the process founded on the verification.64

66

24. Amending.]— The general power of a court of record to amend its own proceedings extends to allowing defective verifications to be amended,65 and omitted verifications to be supplied, except where they are jurisdictional.

The amendment may be allowed when asked by way of defeating a motion by the adverse party, founded on the lack of proper verification, and it may be allowed at the trial, if the adverse party is not taken by surprise.

68

25. Remedy for non-verification of complaint.] — The remedy of one who is proceeded against by an unverified complaint in a case where the law requires verification, is not by demurrer,

62 Jaillard r. Tomes, 3 Abb. N. C. 24.

63 West v. Home Ins. Co., 18 Fed. Rep. 622 (granting motion that the answer be struck out for want of proper verification).

64 Matter of Keiler, 4 Abb. N. C. 150, 159. (The dictum that interposing a false pleading is a contempt, is overruled in Fromme r. Gray, 148 N. Y. 695.

65 Yellow Pine Co. v. Atl. Lumber Co., 21 Misc. 164, 47 N. Y. Supp. 77.

66 Bragg 1. Bickford, 4 How. Pr. 21; Kennedy v. Wachsmuth, 12 Serg. & R. (Pa.) 171; Hargrove v. Woolf, 34 Kans. 101; s. C., 8 Pac. Rep. 192; Trabue r. Higden, 4 Cold. (Tenn.) 620; Lowenstein v. Monroe, 52 Iowa, 231; Lattimer 0. Ryan, 20 Cal. 628 (refusing to grant such leave, held error).

67 Fisher v. Bloomberg, 74 App. Div. 368, 77 N. Y. Supp. 541; Hughes v. Feeter, 18 Iowa, 142; Angier v. Masterson, 6 Cal. 61.

es Perry v. Jones, 18 Kans. 552 (granting it on terms which allowed plaintiff à continuance).

Wheeler r. Wales, 3 Bush (Ky.), 225; Arrington v. Tupper, 10 Cal. 464 (holding it error to refuse leave).

Contra, Moore 0. Emmert, 21 Kans. 1. Compare Lawrence v. Staigg. 8 R. I. 254, where it was held too late to ask it after trial.

for the verification is no part of the substance of the pleading; nor by motion to dismiss the proceeding, if it was initiated by proper process; but by returning or moving to strike out the unverified pleading; 10 or the party may waive the objection and treat the paper as unverified." If, however, the proceeding be special and statutory, the requirement of verification may be jurisdictional; and if so, a special appearance and motion to disiniss is proper; or, in some cases, it may be preferable to rest on the voidness of any adjudication made without jurisdiction.

73

26. — of responsive pleading. ]— The remedy of one who is entitled to a verified answer or reply in response to his previous pleading, and who is served with an unverified or defectively verified one, is not by demurrer, 12 but by motion to strike out.

By the New York practice, such a motion, though proper in a doubtful case to avoid the embarrassment of a charge of wrong practice in entering judgment,74 is not essential, but he may give notice to the adversary's attorney with due diligences that he clects to treat it as a nullity, and proceed accordingly. 76 For this purpose he should return it" with specific notice of the defect,18 unless it be served on behalf of several, and properly verified on behalf of some of them, in which case it should be retained as regular as to them, and prompt notice given as respects the others.

He may, however, at his election, waive the right to strike out or return (in which case the pleading will stand as an unverified pleading),so and take the advantage, if any, that the omission to verify may give him on the trial, as in the case of some allegations

69 Fritz 1. Barnes, 6 Neb. 435. 70 Id.; Greenfield r. Carlton, 30 Ark. 547. 71 N. Y. Code Civ. Pro., $ 528, providing thus as to pleadings generally.

72 Parker v. Simpson, 1 Mo. 539; Newby v. Rogers, 54 Ind. 193; Swihart v. Shaffer, 87 id. 208; Hagler v. Mercer, 6 Fla. 342.

73 Same cases; Dorsey v. Hardesty, 9 No. 157; Barber v. Summers, 5 Blackf. (Ind.) 339; Harper v. Drake, 15 Iowa, 157 (applying the Iowa statute).

74 Fredericks v. Taylor, 52 N. Y. 596.

75 Paddock v. Palmer, 32 Mise. 426, 66 N. Y. Supp. 743 (five days' delay in returning waives defect; dictum that twenty-four hours is the limit unless excuse for further delay appears).

76 N. Y. Code Civ. Pro., & 528. 77 See p. 404 of this volume.

78 See p. 404 of this volume. A notice that it is returned because not sufficiently verified, is not enough. Snape v. Gilbert, 13 Hun, 494.

79 Hull t. Ball, 14 How. Pr. 305 (holding forty days' delay to give such notice fatal).

80 N. Y. Code Civ. Pro., & 528 (first sentence).

« PreviousContinue »