58 Wis. 310 | Wis. | 1883
The only difference between the affidavit in this case and the one which was held insufficient by this court in the case of Wiley v. Aultman, 53 Wis., 560, is that in the Wiley Case the words “on behalf of” the plaintiff (giving his name) were omitted. We are clearly of the opinion that the insertion of these words do not cure the defect. If the affiant had sworn that he made the affidavit on behalf of the plaintiff, instead of simply reciting it, there might be some reason for saying the case was different from the case of Wiley v. Aultman. But he has not done that. He simply says he makes it on behalf of the plaintiff. All the cases hold that a recital of this kind is not a part of the affidavit which is verified by the oath of the party making’ it. Hill v. Hoover, 5 Wis., 354; Sloane v. Anderson, 57 Wis., 135; Weatherwax v. Paine, 2 Mich., 556.
If a mere recital in the affidavit that it is made on behalf of the plaintiff is sufficient, then it would seem that the case of Wiley v. Aultman was wrongly decided. In' that case the plaintiff offered to show the fact that it was made on behalf of the plaintiff, although that fact did not appear in the affidavit, and the court rejected the evidence; and this court, said that the defect could not be cured in that way, but. that the affidavit itself should show that fact. If a mere recital, not verified by the oath of the person making it, was sufficient, there would seem to be no reason for excluding parol evidence of the fact. A similar decision was made by the supreme court of Kansas in Manley v. Headley, 10 Kan., 88-94 In that case the affidavit stated in the body thereof that the party making it was one of the plaintiffs; but as it appeared that the plaintiff was a corporation, it was clear that that part of the affidavit was false, or a mistake, and it was sought to uphold the affidavit by showing that the person making the same was in fact the agent or attorney for the plaintiff. It was held that the affidavit was insufficient. The court say: “ The filing of an affidavit by one of the
We think the case.at bar is clearly within the decision in Wiley v. Aultman, and we are disposed to sustain that decision, so far at least as it requires the person making the affidavit to testify that he makes it on behalf of the plaintiff; and that the omission so to do in the affidavit in question in this case renders it insufficient to sustain the proceedings. We think it very clear that the statute, which says that the affidavit must be made by the plaintiff or some person in his behalf, means some person having authority from the plaintiff to make it on his behalf, and not a mere volunteer, as was said in the case above cited. There could be no doubt that •if the statute required the plaintiff, or some one authorized by him, to make the affidavit, it would be necessary for the party making the same to state and swear to his authority. Under the statute as it now reads, if he swears that he makes the affidavit on behalf of the plaintiff, the fair inference will be that he does so with the direction or approval of the plaintiff. The want of such a statement in the affidavit does not assure the justice who issues the warrant that he is not issuing it at the instigation of a person in no -way connected with the plaintiff. Whether the affidavit would be insufficient, as intimated in the case of Wiley v. Aultman, if it failed to state the relation of' the affiant to the plaintiff, and his knowledge upon the subject of the indebtedness of the defendant, need not be decided in this case.
.The only other question in the case relates to the proofs offered by the appellant tending to show a ratification by
By the Court.— The judgment of the circuit court is affirmed.