44 W. Va. 402 | W. Va. | 1898
Suit in equity, with attachment, by Bohn Bros. & Co. against Jacob Zeigler, in which affidavits for attachment were quashed, and the bill dismissed, and plaintiffs appeal.
In this case arises the question of the deficiency and the amendableness of the affidavit for attachment, while in the case of Miller v. Zeigler (at this term) 29 S. E. 981, the question of the same character related to the order of attachment. I refer to that case on the subject of amendment. In this case the affidavit was made before a notary in the State of Ohio, and as his certificate did not have the further certificate of a clerk or other officer of a court of record verifying the genuineness of the notary’s signature, and his authority to administer oaths, the affidavits would be bad for want of due authentication. Code, c. 130, s. 31; Lockhead v. Improvement Co., 40 W. Va., 553, (21 S. E. 1031). The seal of a notary out of the State does not, alone, verify and authenticate his act, except as regards bills of exchange, under s. 7, c. 51, Code, and deeds, under s. 3, c. 73. His signature, alone is enough as t'o depositions under c. 130, s. 33, Code. Proff. Not. § 166; 16 Am. & Eng. .Enc. Law, 757. And, as to affidavits, our statute requires certain further authentication. • When, however, the court expressed its opinion to sustain the motion to quash the affidavit and supplemental affidavit, the plaintiffs asked leave to attach-fo said affidavits a certificate of a clerk in Ohio, to cure the said omission, and to prove the authenticity of said notary’s certificate, but were refused. Ought the court to have allowed this amendment? I think so. Now, there is a difference between amending- an attachment affidavit in matters of substance and matters of mere formality; between amending an affidavit in the substantial- matter of the statement- of cause of action, grounds of attachment, and material facts to sustain such grounds, and amending the certificate of jurat, or the certificate authenticating it. The amendment in the former case touches the essential rights of the defendant, whereas amendment of form does not, unless we say he has a vested and indisputable right to have a merely clerical or formal
Now, as to the particular defect in hand. It does not savor of the substance of the affidavit, being only an omission to append a clerk’s certificate to verify the notary’s official authority and the genuineness of his signature,— facts existing, but not proven as yet, but provable by the clerk’s certificate offered as amendment. Whynot receive it? Affidavits for attachment, in matter of cause of action and grounds of seizure of property, are not amendable, except as statutes allow. Goodman v. Henry, 42 W. Va., 527, (26 S. E. 528), Baking Co., v. Bachman, 38 W. Va., 84, (18 S. E. 382). But, as to formalities, we cannot say so. Many decisions draw this distinction between substance and form in matter of amendment. Sommers v. Allen (decided November 1897) 28 S. E. 787; Wade At-tachm. § 72; Palmer v. Bosher, 71 N. C. 291; Shield v. Dothard, 59 Ala. 595; Anderson v. Coal Co., 12 W. Va., 526. I find the attachment case of Lawton v. Kiel, 51 Barb. 30, in point; holding that an objection that an affidavit was sworn to before a commissioner in another state, but no certificate of the secretary of state had been obtained as required
Reversed.