State ex rel. Hoffmann v. Day

57 Wis. 655 | Wis. | 1883

Cassoday, J.

It is conceded, in effect, that the facts stated in the petition presented to the county court, and upon which that court appointed the guardian on June 11, 1881, were sufficient, had the petition been verified, to have given the court jurisdiction. The contention is that the verification was not sufficient within the meaning of sec. 3976, R. S., as construed by this court on the Appeal of Royston, 53 Wis., 612. In that case no name or official signature was affixed to the jurat until long after the appointment, and it was held by this court that such appointment could only be made upon verified petition stating the requisite facts, and that until the presentation of such a petition there was no jurisdiction in the court to make the appointment. Here the official signature was affixed. True, it bears no date, but the petition is dated December 20,1880, and the order of the county court made on that day recites that it was made upon reading and filing the verified petition of Nicholas Hoffmann. Therefore, it does appear, presumptively at least, that the official signature was so affixed on that day. There was no such recital nor signature in the Royston Case, and hence the two cases are clearly distinguishable.

In Wright v. Fallon, 47 Wis., 488, and Schuster v. Haight, 53 Wis., 290, the person purporting to make the affidavit did not subscribe the same, nor did the certificate refer to the subscription to any petition or paper, as here, authenticating the same, and hence in each such omission was held to be fatal. Rut here the statute does not require any affidavit to be made, but does require a verified petition to be presented. Hence those cases seem to be distinguishable. Here the petition was duly subscribed by Nicholas Hoffmann, and purported to be made by a relative, and stated the requisite facts. Nothing remained, therefore, to give the court jurisdiction but the verification of the petition. Was it verified? The section in question does not say verified by affidavit, nor in any particular mode' or form, as in the case of pleadings. It simply requires the petition to be verified. By this we understand the petition must be proved or confirmed by the oath of the petitioner. The facts stated in th e petition are to be established, prima facie, by such oath. We think it here appears that the petition in question was so proved, confirmed, and established before it was presented to the county court. It was dated and signed by the petitioner, who thereupon, and after being first duly sworn by the notary, deposed and said that he had read the foregoing petition by Mm subscribed, and knew the contents thereof, and that the same was true to his own knowledge, except as to the matters therein stated upon information and belief, and as to those matters he believed it to be true; and this certificate, with the proper venue, was certified to by the officer before whom it was taken, and such certificate does recite that the petition was subscribed by the petitioner. The date, subscription, official signature, recitals, and oath must be taken together, and when so taken they are, in effect, equivalent to the oath accompanying bills and answers in chancery under the old practice, or as now followed in the United States circuit court. It will hardly be claimed that such bills and answers, with such oath attached, were not verified. The view we have taken of the case seems to render it unnecessary to consider the other questions discussed by counsel.

By the Oowrt.— The order of the circuit court is reversed, and the cause is remanded with direction to affirm the order of the county court.