14 Wis. 658
Wis.
1861

j$y ¿j¡e Qourt,

Cole, J.

This is an appeal from an order of the circuit court, setting aside and vacating a judgment. The action was commenced by the service of a summons and copy of a complaint upon the respondents.— At the expiration of the time for answering, the appellant proceeded and entered judgment for want of an answer. It appears that the respondents, within the time limited, served their answer upon the attorneys of the appellant, who immediately returned the same because it was not verified, and took judgment as by default. The respondents contend that as the verification of the complaint was insufficient, they were not required to verify their answer. The case, therefore, turns entirely upon the sufficiency of the verification of the complaint.

The action was brought upon a promissory note given by the respondents, payable to one Andrew Lansing or bearer, which note had been assigned or indorsed to the appellant. All the allegations of the complaint are positive, none being stated on information and belief. The verification was as follows:

“ State op Wisconsin, ] Green Lake County, j

M. L. Kimball, being duly sworn, says he is one of the attorneys of the plaintiff in this action ,• that the foregoing amended complaint is true of his own knowledge, except as *661to matters therein stated on information and belief, and as to those matters he believes it to be true ; that the note re- , ferred to in said complaint is now in his possession, as one of the attorneys for the plaintiff, which is the ground of his belief. And deponent further says that the plaintiff in this action does not verify the said complaint for the reason that he does not reside in, and is now absent from the county of Green Lake, where his attorney resides.”

This affidavit was signed and sworn to before a notary public.

This was a case in which the attorney was undoubtedly authorized to verify the complaint, the action being founded upon a promissory note which was in his possession. Sec. 19, chap. 125, R. S.; Mills vs. Houghton, 8 Wis., 311; Fitch vs. Bigelow, 5 How. Pr. R, 237; The People ex. rel. Smith vs. Allen, 14 id., 334, and cases there cited; Morley vs. Guild, 13 Wis., 576. The attorney has likewise stated the reason why the complaint was not verified by the plaintiff, although this was not deemed essential in Mills vs. Houghton. He has further said that the complaint was “ true of his own knowledge, except as to matters therein stated on information and belief, and as to those matters he believes it to be true.” — ■ As all the allegations of the complaint are positive, nothing being stated on information and belief, it is very clear that there is nothing to which the exception can possibly apply. In Kinkaid vs. Kipp, 1 Duer, 692, such an exception in the verification to a complaint which contained no single averment to which it could apply, was characterized as at least “a harmless absurdity,” while the court say that the better practice is to omit it altogether where the allegations are positive ; and so we held in Morley vs. Guild. Indeed, in the latter case, there is such a full discussion of the real intent and meaning of sec. 19, chap. 125, that but little need be said here. It was there decided that the statute did not prescribe the form of a verification which must be blindly and inflexibly followed in all cases, regardless of the way the matters were stated fin the pleadings. So that where nothing was stated upon information and belief, but all the averments were positive, as in the complaint under consid*662eration, and the complaint was verified bj tbe party or agent being “trae of bis own knowledge,” it could not be necessary to put in an exception as to matters stated upon information and belief. Erom the form of affidavit adopted here we are to presume that the attorney had personal knowledge of all the material matters stated in the complaint. Eor he says that it is true upon his own knowledge, except as to what is therein stated upon information and belief, and we have seen that there is nothing to which the exception could apply. It is possible that the attorney did not intend to swear that he had personal knowledge of the giving of the note at the time and in the manner alleged, that it was assigned and delivered to the appellant by the payee, and that nothing had ever been paid upon it; but this is the fair import and construction of the verification, as we understand it. Such being the case, we consider the verification defective for not stating what knowledge the attorney had upon the subject. The statute says that when the pleading is verified by any other person than the party, he shall set forth in the affidavit his Tmowhdge, or the grounds of his belief. Now what knowledge had the attorney of the matters stated in the complaint ? "Was he present when the note was made and delivered ? In other words, what is his knowledge up on the subject? It may be said that he states that the note referred to in the complaint is in his possession, and that this is the ground of his belief. Possession of the note, and acquaintance with the hand writing of the makers, may be good ground for a belief on the subject But what actual personal knowledge had the attorney of the facts and transactions mentioned in the complaint ? Was he present when they occurred ? Did they take place under his own observation ? If so, he may be said to have “knowledge” of them, in the sense of that word as used in the statute. But if he was not, and if all his information upon the subject is derived from the statements of others, from the possession of the instrument, &c, then, while he may have excellent grounds for a belief that the matters stated in the complaint are true, he cannot be said to have any actual knowledge of them. Nor can this be said to be too great refinement upon lan*663guage — a hypercritical construction of the statute — since tbe legislature therein have taken an obvious distinction between knowledge of facts and a belief on the subject, or an assent of the mind founded upon evidence that those facts exist. Hence the statute requires, when a pleading is verified by any other person than the party, that he shall set forth in the affidavit, if upon knowledge, what knowledge he has upon the subject. We suppose it would be sufficient for him to say that he had actual personal knowledge of the facts stated in the complaint, because he was present when they occurred. This is what is implied by a knowledge of them. And as the verification fails to set forth what knowledge the attorney had of the facts stated in the complaint, we must hold it defective. Being defective, the respondents had a right to treat the complaint as unverified, and to put in answer without oath. Stannard vs. Mattice, 7 How. Pr. R, 4; Treadwell vs. Fassett, 10 id., 184; Hubbard et al. vs. The National Prot. Ins. Co., 11 id., 149; Tibballs et al. vs. Selfridge et al., 12 id., 64; Wilkin vs. Gilman, 13 id., 225; Meads vs. Gleason, id., 309; The People ex rel. Smith vs. Allen, 14 id., 334.

It follows from these remarks that the order of the circuit court must be affirmed.