Gillett v. Houghton

8 Wis. 311 | Wis. | 1859

By the Court,

Smith, J.

These two cases are appeals from the circuit court of Bad Ax county. Both cases are founded upon the same state of facts, were both argued at the same time, and will be disposed of together.

The only question presented by the record in this case is: whether the verification of the complaint was sufficient as required by the code of procedure.

The judgment was entered under section 158 of the code, as upon a verified complaint, no answer having been put in. The court below, on motion, vacated the judgment for the reason that the verification of the complaint was held to be defective.

Section 63 of the code provides that the verification of the pleadings must be made by the party, if such party be within the county where the attorney resides, and capable of making the affidavit. The affidavit may also be made by the attorney or agent if the action or defence be founded upon a written instrument for the payment of money only, and such instrument be in the possession of the agent or attorney. When the verification is made by any other than the party, he shall set forth in his affidavit his knowledge, or the grounds of his belief on the subject, and the reasons why it is not made by the party.

Here are two classes of cases in which a pleading is to be verified, viz : one by the party if accessible, and if not, then by the attorney, giving his means of knowledge on the subject, and the reason why the party does not make it; and the other where the action is founded upon a written instrument for the payment of money only, which is in the possession of the attorney who verifies the complaint or pleading.

Although there have been conflicting decisions in the State of New York in regard to the practice to be pursued under this section of the code, it seems to us very clear that the class of cases wherein it is sufficient that the agent or attorney may verify the pleading is indubitably indicated, viz: when the claim is founded upon an instrument in writing for the payment of money only, such as a promissory note, bill or bond, which is in possession of the attorney. It was not the design of the legislature in such cases to require the attorney in whose hands such instruments were left for collection, to seek out his client and procure his verification. Such would have been an onerous, if not a useless exaction. But when the cause of action or defence is founded upon extrinsic facts, not authenticated by these well known evidences of indebtedness, then indeed the verification should be made by the person presumed to have the best knowledge of such facts, and the natural presumption Avould seem to indicate the party as such person.

In this case, however, the attorney making the verification, has not only alleged that the claim is founded upon an instrument in writing for the payment of money only, and that the same was in his possession, but that his belief of the facts set forth was founded upon his possession of such instrument, and the signature of the defendant thereto with which he was acqainted. Comparing this verification with the complaint and the requirements of the code, we think it is sufficient, and that the court below erred in vacating the judgment.

There is no other matter necessary to be determined in this case.

Judgment reversed with costs