156 N.W. 86 | S.D. | 1916
“State of South Dakota,. County of Lincoln.
“W. E. Gantt, agent for the Stimipson Computing Scale Co,, whose foregoing claim is herewith presented to. the administratrix of said deceased, 'being duly sworn says that the amount thereof, to-wit, the sum of One hundred fifteen dollars ($115.00) is justly due said claimants, that no payments have been .made thereon, which are not credited, and that there are no offsets to> the same, to the knowledge of the said W. E. Gantt.”
Plaintiff brings this action to recover the amount alleged to be due on this claim. Defendant demurred to the complaint on the sole ground that the affidavit was insufficient to» support the claim, in that it did not comply with section 171 of the Probate Code. The demurrer was sustained by the trial court. Plaintiff elected to stand upon the complaint, and final judgment was entered dismissing the action. This appeal is to review the order sustaining the demurrer.
Section 171, Probate Code, so far as material here, is as follows :
“Every claim which is due when presented to the administrator must be supported by the affidavit of the claimant or some one his his behalf, that the amount is justly due, that no payments have been made thereon which are not credited, and that there are no offsets to" the same, to the knowledge of the claimant or affiant. * * * When the affidavit is .made by a person*566 other than the claimaint, he must set forth in the affidavit the reason why it is not make 'by the claimant. * * *”
It is appellant’s contention that this affidavit substantially complies with, this statute. In this we think appellant is in error. Appellant relies chiefly on the case of Patrick v. Austin, 20 N. D. 261, 127 N. W. 109. We do not regard that case as controlling. I he question here presented was but casually considered in that case. The court merely says:
“The claimant being a corporation, the verification would necessarily have to be made by an officer; in the case at bar it was made 'by the treasurer.”
The Court apparently overlooked the fact that the statments referred to as being in the affidavit, were mere recitals, and that the affidavit itself was signed and sworn to. as, “F. A. P'atrick & Co. by Geo. C. Stone.” Further comment is unnecessary. Appellant here contends that the affidavit—
“Sets forth the fact that the claimant is a corporation, and the ■party making it is its agent. That the corporation being incapable of acting except by an agent, such affidavit is a substantial compliance with the statute.”
It will be observed that it does not appear even by way of' recital in the affidavit in this case (as it did in the Patrick Case), ■that the claimant is a corporation. The claimant is described in the recitals as the “Stimpson Computing- Scale Company,” which might be the name of a corporation, a partnership., or of a person transacting business under a fictitious title. This court cannot assume that the claimant is a corporation, and can act only by agent. The affidavit therefore is totally void of any allegation showing Why it is not made by the claimant, or showing that affiant is competent to> make it.
The case of Maier Packing Co. v. Frey, 5 Cal. App. 80, 89 Pac. 875, is on all fours with this case. The statute (section 1494, Cal. C. Civ. Proc.) is identical with section 171 of our P'robate Code. The affidavit was in ¡substantially the same language, and was held insufficient by the trial court as in this case. Affirming this ruling, the court said:
“The affidavit before us does not disclose the capacity or character in which claimant appears; there is ho statement in it from which we can conclude that Maier Packing Company is an*567 incorporated company, and in the absence of some averment setting forth such fact, we cannot assume that it is a corporation. The affidavit is defective in not assigning some reason which would relieve claimant from- making it. Where -the claimant is a corporation, it should appear from the affidavit that the person acting on -its behalf is an officer thereof, presumed from -his official position to have sufficient knowledge of its affairs; or, if made by other than such official; it should contain averments tending to show, when he swears that there are no offsets to his knowledge, that the nature of his relation to the company is -of a character calculated- to place him in possession of the refcpisite information upon the subject. Where the affidavit is made by an individual, who bases his claim upon transactions had -with deceased, the law imputes to him- knowledge of the truth of the averments contained in his affidavit. When made by another -on bis behalf, such person should,' in addition to averring that he has no knowledge of any offsets, aver facts showing that be was in a position to know of them if any existed.”
This case follows Perkins v. Onyett, 86 Cal. 348, 24 Pac. 1024. In the latter case all the material parts of the affidavit are in the exact words used in the present affidavit, viz.:
“Milton J. Green, agent for Perkins & Co., whose foregoing -claim is herewith presented to the executor of the estate of said decease-d, being duly sworn, says,” etc.
It may further be observed that the statute does not authorize the making of such affidavit by an “agent” of- the claimant, as in certain attachment cases cited by. counsel. The mere statement that the person making the affidavit is an -agent of the claimant therefore would not show competency to make such an affidavit, nor would it be sufficient as. a “reason” why the affidavit was not made by- the claimant himself.
The general rule as to the sufficiency of affidavits is stated in 1 R. C. L. 762 (sections 3, 4); Crowns v. Vail, 31 Hun, 204, 4 N. Y. Supp. 324; Cross v. Nat. Fire Ins. Co., 53 Hun, 632, 6 N. Y. Supp. 84; Pach v. Geoffroy, 65 Hun, 619, 19 N. Y. Supp. 583; Talbert v. Storum, 66 Hun, 635, 21 N. Y. Supp. 1064.
The judgment and order are affirmed.