10 Wis. 501 | Wis. | 1860
By the Court,
The judgment in this case cannot be reversed for any irregularity in the appointment of the next friend of the defendant in error. By our statute of jeofails, as it existed prior to the repeal of the statutes of 1849, such defect was cured by verdict or judgment in favor of the infant. Sub. 7, sec. 7, chap. 100, Revised Statutes of 1849. 'Our present statute is much more broad and liberal. All objections not going to the merits of the action or defence, seem to be swept out of existence. Section 40, of chapter 125, provides: K the court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of any such error or defect.” This is evidently an error or defect which does not affect the substantial rights of the plaintiff in error.
The affidavit on which the order for publishing the summons was made is clearly defective, and by it no jurisdiction
The affidavit is in other respects irregular. Most of the statements are made upon information and belief. Such statements are but hearsay, and not evidence of facts. They are excluded by the familiar rule of law which requires the best evidence of which the nature of the case will permit. We do not wish to be understood as deciding that in no case can such statements be received. Under certain circumstances, and in connection with other facts clearly proved, they, perhaps, may be. But where the facts are such as can be established by direct and positive testimony, they should be. Such was the fact of residence in this state; yet all that is said upon this subject is upon information and belief merely. It is a general rule that witnesses must speak of facts and circumstances within their own knowledge. If information is received, it should be as to such matters as cannot otherwise be shown. The names of the informants should be stated, so that the officer may judge o,f their credibility and means of knowledge, and a satisfactory reason shown for not calling them, as that they are members of the defendant’s family, or adversely interested. 6 Hill, 187. None of these things were done in this case.
There having been no legal evidence before the commissioner tending to prove many of the material facts to be established, no such prima facie case was made out as to give him jurisdiction, and make his decision conclusive.
The judgment of the circuit court must, therefore, be reversed.