44 S.W.2d 343 | Ark. | 1931
The appeal in this case questions the sufficiency of the appeal from the probate court on the ground that it was not perfected within the time required by law. The appeal was granted by order of the probate court on March 2, 1927, and the transcript lodged with the clerk of the circuit court on January 30, 1928.
The appellant invokes 2262 of Crawford Moses Digest in support of his contention, and argues that 6525 of the Digest, regulating appeals from the justice court, is in the identical language of this section, and that it (6525) has been construed by a number of our decisions to support the contention made that the appeal here was not perfected within the time prescribed by law. The two sections are in fact identical and read as follows: "All appeals allowed ten days before the first day of the term of the circuit court next after the appeal *860
allowed shall be determined at such term unless continued for cause." In construing that section regulating appeals from the justice court, this court has held in a number of decisions, beginning with the case of Smith v. Allen,
The state of the record in this case does not disclose any facts from which it can be said that the refusal of the court to dismiss the appeal was an abuse of this discretion, and, inasmuch as the appeal was taken within twelve months from the judgment of the probate court, it was taken within time. Section 2258, Crawford Moses' Digest.
This case arose upon the filing of a note of the appellant's intestate in the probate court, it having been first presented to the administratrix (appellant) and disallowed by her. The probate court disallowed the claim, and on appeal to the circuit court, after having moved to dismiss the appeal for the reasons heretofore given, moved to dismiss the case on the ground that the claim was not authenticated as required by law. This motion was overruled, and the cause proceeded to trial before a jury, and judgment was rendered in favor of the claimant on the instruction of the court. The refusal of the court to nonsuit the claim because of the insufficiency of the affidavit is the principal assignment of error and the one that has given us most concern. After a careful examination of all of the authorities cited by the appellant, we have concluded that the affidavit was a substantial compliance with the statute, and that the court did not err in its refusal to nonsuit the claim. The affidavit filed with the claim is as follows: *861
"I, M. P. Matheney, as attorney for the Fearis Separator Company, do solemnly swear that the above and foregoing demand against the estate of W. H. Murray, deceased, is just and correct, and that nothing has been paid or delivered toward the satisfaction of said demand, except what is credited thereon; that the sum of one thousand ($1,000) dollars, with interest from 12/13/1925 is justly due. M. P. Matheney, attorney for J. J. Fearis and Fearis Separator Company. Subscribed and sworn to before me this 27th day of February, A.D. 1926. J. G. Ragsdale, Notary Public."
The statute directing the manner in which claims may be authenticated is found in 101, Crawford Moses' Digest, and reads as follows: "And the claimant shall also append to his demand an affidavit of its justice, which may be made by himself, or an agent, attorney or other person. If made by the claimant, it shall state that nothing has been paid or delivered toward the satisfaction of the demand, except what is credited thereon, and that the sum demanded, naming it, is justly due. If made by any other person, it shall state that the affiant is acquainted with the facts sworn to, or that he had made diligent inquiry and examination, and that he verily believes nothing has been paid or delivered toward the satisfaction of the demand, except the amount credited thereon, and that the sum demanded is justly due."
This court has held on numerous occasions that the making of an affidavit is a jurisdictional requirement, but that it need not be in the exact language of the statute, but will be sufficient if there is a substantial compliance with the statutory requirement. Ross v. Hine,
In the affidavit before us, knowledge of the facts is stated in unequivocal and positive terms as a truth which appellant knew, and not something which he believed to be true. In the case of Breckenridge v. Weber Dry *863
Goods Co.,
It seems that there was no defense offered by the administratrix to the claim on its merit, but that she contented herself with a bare technical defense which courts are not inclined to favor and which are not allowed except in such cases as from which there is no escape. The affidavit in this case, while not a literal copy of the language of the statute, is a substantial compliance with its terms. The judgment of the trial court is therefore correct, and it is affirmed.