Ruch v. Jones

33 Mo. 393 | Mo. | 1863

Dryden, Judge,

delivered the opinion of the court.

The case hardly presents the point the parties wish decided, which is, whether the joint answer of several co-defendants is not sufficiently verified by the affidavit of one of them. We have no hesitation in answering the question in the affirmative. (Huntington & wife v. House, 22 Mo. 365.)

If the verification had been insufficient, still it was wrong to render judgment by default so long as the answer was on the record. The right practice in such case is to move to strike out the imperfectly verified answer, and after it is thus disposed of, then take the default; but as long as the answer stands, no matter whether imperfectly verified or not verified at all, it is error to enter a default. The affidavit is no part of the answer.

Let the judgment be reversed and the cause remanded.

The other judges concur.