Bowers v. Kanaday

| Ga. | Jul 30, 1894

Lumpkin, Justice.

An execution in favor of Kanaday was levied upon a yoke of oxen as the property of L. Greenman. A claim was interposed by Bowers, as guardian ad litem of 'William A. Greenman, a minor about twenty years of ■age, alleging that the property belonged to the latter. On the trial the property was found subject, and Bowers, as such guardian ad litem, sued out a «writ of certiorari. The petition was verified by the oath of William A. Greenman in forma pauperis. The court, on motion, • dismissed the certiorari upon the ground that the oath verifying the petition was not made by Bowers.

This was error. William A. Greenman was the principal witness in his own behalf upon the trial of the case. His evidence, as brought up in the record, in connection with the fact that he had nearly attained his majority, shows with certainty that he had sufficient discretion not only to understand an. oath and its obligation, but to form and ^entertain a sensible opinion as to his own .rights and interests. He being the real party claimant, we think he was competent to verify the petition for certiorari, although it was brought for him by his guardian ad litem. Indeed, it would seem that the young man himself was better qualified than any other person to depose concerning his inability, by reason of poverty, to pay the costs and give security, and no reason occui's why he should not likewise be regarded as competent to make the general verification of the petition required by statute.

This view is entirely consistent with the ruling of this court in Hadden v. Larned, 83 Gra. 636, holding that a claim may be interposed under the act of 1870 upon an affidavit in forma pauperis made by the claimant himself, but not upon a like oath made by his agent. In the case before us, as has been shown, the affidavit was-in fact made by the real claimant, and he was old enough and intelligent enough to make it advisedly. Had he been a child of tender years, and for that reason incompetent to depose as to the facts contained in the affidavit, it would have been more appropriate for the verification to be made by the guardian ad litem. The truth is, the language of section of 4056 of the code is not precisely adjusted to a case like the present, and in view* of the facts, we think the verification by the minor was a substantial compliance with its requirements.

Judgment reversed.