13 Wis. 576 | Wis. | 1861
By the Court,
The facts of these two cases, so far as they are connected with any disputed questions of law, are precisely the same, and both were treated as one cause at the argument. They present two questions of practice for our determination. The first relates to the time within which a defendant in a foreclosure action, against whom no personal claim is made, may be permitted to answer, under the operation of sec. 5 of chap. 124 of the Revised Statutes, and sec. 1 of chap. 220 of the Laws of 1859, in a case where he is served with a summons and a notice of no personal claim, and within ninety days thereafter makes a demand in writing that he be served with a copy of the complaint. In these cases the demands of copies of complaints were made some three or four days before the expiration of ninety days after seivice, and, in obedience thereto, copies were served within twenty d^ys thereafter, but not until the ninety days had expired. The defendants served their answers within twenty days after receiving the copies of the complaints. The answers were returned for the reason that the time for answering had expired, and becausp they were not properly verified. [
The first section of the act of 1859 declares, that in all actions for the foreclosure of mortgages on real estate commenced after its passage, the defendants shall have ninety days time to answer the complaint, after the service of summons or publication of notice as now required by law; and that no default shall be entered until after the expiration of such time. Section 5 of chapter 124, which is the only ex
From these provisions it will be seen that, by tbe strict language of tbe laws, a defendant who is served with a copy of tbe summ ons only, must demand a copy of tbe complaint witbin twenty days after such service; while one who, in addition, receives a notice of tbe object of tbe action and of no personal claim, may do so witbin tbe term for answering, which, in tbe case of actions for foreclosure, is ninety days. On tbe part of tbe respondent it is insisted, first, that by tbe terms of tbe first section of tbe act,.the time for answering in such actions cannot exceed ninety days; and secondly, that inasmuch as at tbe time of tbe passage of tbe Revised Statutes, tbe expressions “twenty days” and ‘‘term for answering ’’ meant precisely tbe same thing, they are to be so understood and interpreted now, notwithstanding tbe changes wbicb have been introduced by tbe act of 1859 in tbe class of cases under consideration. We do not think that either position is correct. There is nothing in tbe language of tbe first section which would in any manner uphold us in saying that tbe legislature intended that defendants in such actions should in no case have more than ninety days in wbicb to
This brings us to the consideration of the other question, which is, whether the complaints were properly verified. The defendants, conceiving that they were not, served answers without oath, which were returned, and judgments entered as upon a default to answer. The affidavits were made by one of the attorneys for the plaintiff, who, in substance, deposed that he was such attorney; that the plaintiff was not a resident of the county in which the suits were brought, but resided in the state of New York, and was therefore unable to make them; that the actions were founded upon bonds and mortgages in writing for the payment of money only, which were in his possession as such
Tbe principal ground of objection to tbe verification is, tbat tbe affidavit did not pursue tbe language of tbe first clause of section 19 of cbap. 125 of tbe Bevised Statutes, and state in effect tbat tbe complaint was true to bis knowledge, except as to those matters stated on information and belief, and as to those matters be believed it to be true. It is contended tbat tbe statute makes these words essential to every verification, whether it be made by a party, an agent, or an attorney, and tbat they are particularly so whenever tbe averments of tbe pleadings are positive, or as upon tbe knowledge of tbe parties making them. Looking to tbe phraseology of the entire section, we are of tbe opinion tbat this interpretation cannot be sustained. Tbe difficulty With tbe section, and tbat wbicb has led to so much doubt and perplexity is, as Judge Harris says in Mead vs. Gleason, 13 How. Pr. R., 310, tbat by it tbe framers undertook to accomplish quite too much, and in doing so have crowded together several provisions wbicb should have been tbe subjects of distinct sections. Tbe first clause prescribes in substance what the verification must be, and tbat it must be made by tbe party, or 'one of them, if there be several, if such party be within tbe county where tbe attorney resides, and capable of making tbe affidavit. In providing for this verification by tbe party, who is generally supposed to have more or less direct knowledge of tbe subject of tbe litigation, it was very natural for them to say, tbat as to those matters of wbicb be was personally cognizant, be should swear tbat be knew them to ■ be true, and of those wbicb
This view of the statute disposes of the question. The verification here was made under the second clause, and belongs to the second class of cases provided for in the section. In Gillett vs. Houghton, 8 Wis., 311, it was held that the possession by the attorney or agent, of a written instrument for the payment of money only, is in all cases a sufficient statutory ground of belief and reason for his verifying the complaint in an action brought upon it. These facts are fully made to appear in the affidavits before us; and the attorney having sworn that he believed the complaints to be true, it was a sufficient verification, and the answer of the appellants was properly returned for want of being verified.
The orders of the circuit court refusing to set aside the judgments for irregularity, are therefore affirmed.