31 S.E. 716 | N.C. | 1898
Lead Opinion
This is an appeal from the judgment rendered in the above entitled action, which is the same original action in which the motion was made to set aside the judgment for excusable neglect under Section 274 of The Code. In this 'appeal two errors are assigned : 1. That the complaint was not properly verified, and that therefore the answer required no verification. 2. That the judgment if at all regular, should have been by default and inquiry, and not by default final.
Under our view of the law, it is not necessary to consider the second exception or the facts relating thereto.
The complaint and answer both appear to have been filed in time, so that the only questions before us arise upon their verification.' The answer was verified by ¿n agent of the defendant corporation, but it is admitted that this is not a proper verification under Section 258 of The Code. It must therefore be treated as an unverified answer, and, if the complaint had been properly verified, the plaintiff would have been entitled to judgment by default as for want of an answer. An unverified answer is^quivalent to no answer at all, where verification is required. This therefore reduces this case to the single point as to whether the complaint was itself properly verified, so as to require a verified answer. The verification to the complaint is as follows: “W. H. Phifer makes oath that the facts stated in this complaint of his own knowledge are true, and those stated on information and belief he believes to be true.” Section 258 of The Code requires that, “The verification
If the verification under consideration is in effect equivalent to the statute, then it is sufficient; but otherwise it must be rejected, and the pleading considered as an unverified complaint, admitting an unverified answer.
This verification says: “that the facts stated in this complaint of his own knowledge are true, and that those stated on information and belief he believes to be true.” It seems clear to us that the words “of his own knowledge” relate to and qualify the word “stated.” In other words he makes oath that the facts which he states in the complaint are true of his own knowledge, are true; while those he states are true as he is informed and believes, he believes to be true. This excludes those allegations which are not verified in the complaint either as resting on personal knowledge or on information and belief. This class of allegations comprise nearly the entire complaint, which therefore cannot be regarded as verified according to the letter or spirit of the law. Any immaterial variation in the mere words, which would not affect the legal effect of the verification, would be disregarded by us; but here its very intention is defeated. Even if there was only a reasonable doubt as to the meaning of this verification, this mere doubt would destroy the certainty required in a conviction for
We do-not think that the form of verification now under consideration has ever been directly considered and passed .upon by this Court. In the case of Alspaugh v. Winstead, 79 N. C., 526, the verification was similar to this with the exception that the word “except” takes the place of the conjunctive “and” used in the case at bar, which might be a material variation-; but in that case, the only point apparently raised was an attempted distinction ‘ ‘between a statement of facts and the facts themselves.”
As we are compelled to hold that the complaint was not properly verified, the answer must be considered and the judgment stricken out.
Reversed.
Lead Opinion
DOUGLAS, J., delivers the opinion. FURCHES, J., dissents. This is an appeal from the judgment rendered in the above-entitled action, which is the same original action in which the motion was made to set aside the judgment for excusable neglect under section 274 of The Code. In this appeal two errors are assigned: (1) That the complaint was not properly verified, and that therefore the answer required no verification; (2) that the judgment, if at all regular, should have been by default and inquiry, and not by default final.
Under our view of the law, it is not necessary to consider the second exception, or the facts relating thereto.
The complaint and answer both appear to have been filed in time, so that the only questions before us arise upon their verification. The answer was verified by an agent of the defendant corporation, but it is admitted that this is not a proper verification under section 258 of The Code. It must therefore be treated as an unverified answer, and, if the complaint had been properly verified, the plaintiff would have been entitled to judgment by default as for want of an answer. An unverified answer is equivalent to no answer at all, where verification is required. This, therefore, reduces this case to the single point as to whether the complaint was itself properly verified, so as to require a verified answer. The verification to the complaint is as follows: "W. H. Phifer makes oath that the facts stated in this complaint of his own knowledge are true, and those stated on information and belief he believes to be true." Section 258 of The Code requires that, "The verification must be (412) to the effect that the same is true to the knowledge of the person making it, except as to those matters stated on information and belief, and as to those matters he believes it to be true." Section 257 provides that, "When any pleading is verified, every subsequent pleading, except a demurrer, must be verified also," Where there is no verification to the complaint none is required to the answer. The object of the statute is to give the pleader a convenient substitute for the old bill of *297 discovery in equity, and to eliminate all issues of fact that the parties are not willing to support by the sanctity of an oath. All allegations in the complaint, not specifically denied in the answer, are deemed to be admitted; but where the defendant is not under oath, he frequently looks upon his answer as being equivalent to a plea of the general issue, and feels at liberty to deny any and all of the allegations of the complaint, regardless of any knowledge or belief he may have as to their truth. The plaintiff may, at his option, verify his complaint so as to require the defendant to answer each and every allegation under oath, subject to the penalties of perjury. But to do this, his own verification must be directly applicable to each allegation, so as to render him also subject to the same penalties if false. All facts alleged by him in good faith necessarily come under one of two classes. They are either known to him of his own personal knowledge, or they rest upon sufficient information to justify a positive belief. The law requires that his verification shall separate them into their appropriate classes, so that each may come under the direct application of his oath. In the usual complaint, the majority of the allegations are simply stated without specifying how they are known to the pleader. It would therefore be difficult to convict of willful perjury in any case, if they were simply sworn to as being true. To remedy this, The Code says he must (413) swear that the pleading itself in its entirety is true to his ownknowledge, except as to those matters stated on information and belief. He may believe an allegation to be true without knowing it, but he always knows whether or not it is true of his own knowledge. This distinction is required by the statute, and is reasonable and necessary for the protection of the opposing party.
If the verification under consideration is in effect equivalent to the statute, then it is sufficient; but otherwise it must be rejected, and the pleading considered as an unverified complaint, admitting an unverified answer.
This verification says: "That the facts stated in this complaint of his own knowledge are true, and that those stated on information and belief he believes to be true." It seems clear to us that the words "of his own knowledge" relate to and qualify the words "stated." In other word, he makes oath that the facts which he states in the complaint are true of his own knowledge, are true; while those he states are true as he is informed and believes, he believes to be true. This excludes those allegations which are not verified in the complaint either as resting on personal knowledge or on information and belief. This class of allegations comprise nearly the entire complaint, which therefore cannot be regarded as verified according to the letter or spirit of the law. Any immaterial variation in the mere words, which would not affect the legal *298 effect of the verification, would be disregarded by us; but here its very intention is defeated. Even if there was only a reasonable doubt as to the meaning of this verification, this mere doubt would destroy the certainty required in a conviction for perjury, and suggest the (414) danger of permitting such a variation from the statutory form, which itself admits of no doubt.
We do not think that the form of verification now under consideration has ever been directly considered and passed upon by this Court. In the case of Alspaugh v. Winstead,
As we are compelled to hold that the complaint was not properly verified, the answer must be considered and the judgment stricken out.
Reversed.
Dissenting Opinion
I do not concur in this opinion.
