Brooks v. Snead

50 Miss. 416 | Miss. | 1874

Simrall, J.,

delivered the opinion of the court:

This was an appeal case in the circuit court from the judgment of a justice of the peace. The appeal was dismissed by the circuit court, for the want of a proper affidavit, directed by Code of 1871, § 1332, viz.: “an affidavit filed that such appeal is not made for delay, nor to vex, harass or oppress his adversary, but that justice may be done.”

The objection is, that Brooks, the appellant, did not sign the affidavit. The justice of the peace certifies by bis signature and seal, that Brooks appeared before him and made the oath, in the words of the statute. Lexicographers define an affidavit to be a “declaration on oath, a declaration in writing, sworn before a magistrate.”

Is the signature of appellant to the affidavit an indispensable requisite? In Redus v. Wofford, 4 S. & M., 591, the creditor did not sign the affidavit setting forth the ground of attachment. To that objection, the court responded, “ the evidence of this having been done, is the certificate of the justice or other officer.” “The signature of the creditor attached to the affidavit would afford no proof of that fact, nor is it required by law.”

This language was used with reference to the “ complaint on oath * * of a creditor, for the attachment against his absconding or nonresident debtor.” H. & Hat. Code, 548, sec. 11. The 13th section makes void every attachment issued without bond and affidavit taken and returned, as aforesaid. In the 13th section the word “ affidavit ” is used, as a convertible term, with “ complaint on oath ” in the 11th section.

The ruling in the case quoted is, that “ the complaint on oath ” or the “ affidavit ” as used in the other section need not be signed by the creditor. But the certificate of the justice of the peace, or other officer, that the oath was made, is ample evidence of that fact.

For the same reason, if the justice of the peace certifies that the party crating an appeal, makes the prescribed oath, certified by the justice, the justice is satisfied. Such certificates were held good ; that the answer to a bill in chancery was, sworn to. Yeizer v. Burke, Watt & Co., 3 S. & M., 453.

We are of opinion that the appellant did make the affidavit for appeal, prescribed by statute, although he omitted to sign it. The case of Pettus and Stevens v. Patterson, 47 Miss. Rep., 228, has no application to the point made in this case. It was held in that case that ibe appeal was properly dismissed, because no affidavit for appeal, and no certified copy of the proceedings before the justice of the peace were filed in the circuit court.

The judgment of the circuit court is reversed, and cause remanded.