107 Tenn. 693 | Tenn. | 1901
This bill is filed to collect an open account in favor of complainants, against Scott County, for books and stationery supplies. With the bill is exhibited an account sworn to in Davidson County, where the complainants reside and do business. This account is sworn to before a Notary Public of that county by J. O. Edwards, who makes the oath as to the correctness of the account as bookkeeper of the firm of Foster & Webb.
The bill itself is sworn to by an attorney for complainant in Scott County. The oath to the answer is waived. An unsworn answer is filed, but there is no denial under oath of the justice and correctness of this account. In this .condition of the record, and without any evidence the case was heard on a regular call of the docket, when judgment was rendered for the amount of the. account against the county, and it was appealed.
The Court of Chancery Appeals reversed the decree of the Chancellor, and held the complainants not entitled to recover, and they have appealed to this Court and assign errors.
The Court of Chancery Appeals held that the account was substantially and sufficiently proven under the statute, Shannon, § 5561; that the affidavit there provided for need not be made by the firm or any member of it who was complainant, but that it might be made by the bookkeeper of the firm as the party who would be most likely to know of its correctness.
We are of opinion the Court of Chancery Appeals is in error. The statute referred to, is in these words: “An account on which action is brought coming from another State or another county of this State with the affidavit of the plaintiff to its correctness, and the certificate of a State Commissioner annexed thereto, or the certificate of a Notary Public with his official seal, annexed thereto, or the certificate of a Justice of the Peace with the certificate of the Clerk of the County Court that such justice is an acting justice in his County, is conclusive against the party sought to be charged, unless he shall, on oath, deny the account.”
The reason and policy of this Act are said to furnish an easy and ready means of collecting-accounts when no real defense exists, unless it shall be denied on oath and the plaintiff thereby notified to make proof. Cave v. Baskett, 3 Hum., 342; Hunter v. Anderson, 1 Heis., 3; Brown v. Stabler, 1 Heis., 444; Briggs v. Montgomery, 3 Heis., 675.
The Court of Chancery Appeals says : “Of course
We would not hold that when the suit is by a firm in which several partners are named as composing the firm, and are joined as plaintiffs in the suit, that the oath must be made by each and every one of them, but it must be made by some one of them who is a plaintiff to the suit and has the requisite information. Such is the rule in case of joint defendants, Brien v. Peterman et als., 3 Head, 499.
If the plaintiff cannot, for want of proper information, make the oath himself, then he does not bring himself within the provisions of the Act, and is not
The result reached by the Court of Chancery Appeals is correct but on these grounds. The decree of that Court is affirmed, and the complainant’s suit is dismissed at their cost, but without prejudice.