169 P.2d 501 | Idaho | 1946
February 1, 1944, Ada Updegraff filed a complaint to renew and keep alive a judgment for $2393.60 and costs, obtained February 5, 1935, by her against appellant and for interest thereon at 6% per annum from said date; 'Richards Haga' being formally designated as her attorneys.
Appellant on February 21, 1944, interposed a demurrer to the jurisdiction of his person and the sufficiency of the facts as stated; and a motion to strike because the complaint was not signed or subscribed by plaintiff or a qualified resident attorney.
An amended complaint was filed February 23, 1944, identical with the original, but with "Richards. Haga" and "J.L. Eberle" and "B.S. Varian" formally designated as attorneys for plaintiff.
Renewed motion to strike was denied and appellant answered April 15 admitting the original judgment, its proper filing, etc. and alleging as sole defense, complete payment and satisfaction thereof February 18, 1944. *798
Plaintiff's attorneys then moved to set aside the satisfaction as entered without their approval or knowledge until service of the answer (not denied by appellant), in order to enforce their claimed and asserted lien for unpaid attorney's fees of $150 balance on the original action, $250 on the renewal action and $150 in the event of an (instant) appeal. They later waived the $150 on the original action and sought only the fees in the renewal action and on appeal.
The court in open session took respondent's evidence as to the reasonableness of the fees sought, ignorance of and nonacquiescence in, the satisfaction of judgment, and subsequent affidavits supplementary to the affidavit in support of their application to vacate the satisfaction and enforce their lien, deposed plaintiff's employment of claimant attorneys, both nisi prius and on appeal and the reasonableness and nonpayment of the claimed fee.
Appellant tendered no evidence or counter affidavits, but challenged the sufficiency of claimants' pleadings and evidence, reiterating lack of proper attorney attestation or representation, in that Sections 52-501-7, I.C.A. had not been complied with by the partnership of Richards Haga.
The court found on sufficiently supporting and uncontroverted affidavits, respondent's employment of claimant attorneys, agreement to pay a reasonable fee, documentation and filing of original judgment, renewal suit, proper service and purported satisfaction unknown to claimants, concluding their consequent right of revocation thereof and impressment of lien on the revived judgment to the extent of the due and unpaid fees as reasonable; vacated the satisfaction and entered judgment in respondent's name for claimants' benefit for $250 attorney's fees for trial services herein, and $150 in the event of appeal, from all of which the appeal herein was taken.
Rule 25 of this court provides that in transcripts * * * "the verification must be omitted, except the date of filing, which must be added at the end of each paper, and if the paper is verified, say 'duly verified'. * * * If some error is assigned, or some fact is necessary to be shown as to the form, sufficiency, or substance of the title, endorsements, or verification, they must be transcribed in full." *799
The transcript herein was prepared on appellant's praecipe and contains this entry on the first or original renewal complaint: "(Verified by J.L. Eberle as a member of the firm of Richards Haga.)"
Sections
No error is assigned as to the form or sufficiency of the verification; therefore, under Rule 25, we must — absent record to the contrary — consider it as complete and in conformity with Section 5-702.2 Judy v. Reilly Atkinson Co.,Inc.,
"The complaint itself was not subscribed at all, but the verification was subscribed by John L. Crandell, who, in his affidavit of verification, states "that he is the attorney and agent of the plaintiff in the above-entitled action'. Was this sufficient to satisfy the requirement of the statute that the complaint must be subscribed by the plaintiff or his agent? In at least three cases this precise question has been before the court, and in all of them such a signing of the affidavit of verification has been held sufficient. In the case ofHarrison v. Wright, decided at the general term of the superior court of Buffalo in 1886, reported in 1 N.Y. St. Rep. 736, the court cites and follows the case of Hubbell v. Livingston, 1 Code Rep. 63, * * *
"In Barrett v. Joslynn,
'The complaint was verified by the plaintiff, as required by the Code, and he signed his name to the verification, but did not subscribe the complaint itself. In Harrison v. Wright, 1 N.Y. St. Rep. 736, where the precise question was up, it was held by the unanimous opinion of the general term of this court that the signature of the plaintiff to the affidavit was a sufficient subscription of the complaint to meet the requirements of the statute. As no authority is shown us holding differently, and on facts exactly parallel, we must follow the law as laid down in that case.'
"The soundness of these decisions seems never to have been questioned, and I see no reason why they are not decisive of the appellant's first point." Clark's Cove Fertilizer Co. v.Stever,
"But it is also contended that the ruling of the court (dismissal of the action) should be upheld because the original complaint was not 'subscribed by the party or his *801
attorney', as required by section 2983. Although the complaint in the record appears to be signed, we shall nevertheless for reasons appearing of record treat it as not having been signed when it was originally filed. The complaint before filing was, however, duly verified as required by section 2983, which verification was made and signed by the vice president of the corporation. It has repeatedly been held that the provision of the Code requiring a complaint to be subscribed by the party or his attorney is sufficiently complied with if the complaint is verified and such verification is signed. 1 Bates' Pl. Pr. Parties Forms, 162; Harrison v. Wright, 1 N.Y. St. Rep. 736;Barrett v. Joslynn,
"The signing of the affidavit of verification by the defendant from whom the title to the realty was derived was a sufficient subscription of the answer in question so far as he was concerned. In the case of Zollicoffer v. Briggs, 3 Rob. (La.) 236, the court held that the signature of a petitioner to an affidavit which the law requires to be annexed to the petition is a sufficient signature of the petition itself. A like doctrine is laid down in Johnson v. Johnson, Walk. Ch. (Mich.), 309; Barrett v. Joslynn,
McTyer v. Stearns (Ga.),
The subsequent pleadings were signed by, in addition to "Richards Haga", "J.L. Eberle" and "B.S. Varian", the last two admittedly authenticated attorneys of this court. The designation of Richards Haga, may, therefore, be entirely disregarded and treated as surplusage without affecting or voiding the appearance by J.L. Eberle, Esq. and Honorable B.S. Varian.
The fees sought herein are for the present claimant attorneys, all fees as to the partnership of Richards Haga or its former member in the original action having been waived. *802
We may and do disregard all reference to Richards Haga and base no reliance thereon; therefore, without approving the use of such partnership name, both named members being deceased, it is unnecessary to discuss or determine whether Sections 52-501-7, I.C.A. supra, apply to a law partnership.
Appellant thus groups the balance of his assignments in his brief — "For all practical purposes, all questions raised under the Specification of Errors (except only those discussed above) (idem therein and herein) are involved in the right of respondent's counsel to hold appellant liable for their Attorney's fees herein, * * *."
In addition to the asserted failure of the partnership to comply with Sections 52-501-7, I.C.A. above discussed and determined, the gist of the above assignment grouping is the insufficiency of claimants' pleadings and evidence. While both were developed piecemeal and somewhat disjointedly, they in substance follow and comply with the procedure approved inRenfro v. Nixon,
"Moreover, appellants have not shown or pointed out wherein they were prejudiced by the procedure followed by the trial court in the instant case. Error is never presumed on appeal and the burden of establishing error is upon the party alleging it. Judy v. Reilly Atkinson Co., Inc.,
The statute3 gives the lien and notice thereof, *803 Woodbury v. Andrew Jergens Co.,
The judgment is, therefore, affirmed. Costs to respondent.
Ailshie, C.J., and Budge, Holden, and Miller, JJ., concur.
"In all cases of a verification of a pleading, the affidavit of the party must state that the affiant believes the facts stated in the pleading to be true, and, where a pleading is verified, it must be by the affidavit of a party, unless the parties are absent from the county where the attorney resides or from some cause unable to verify it, or the facts are within the knowledge of his attorney or other person verifying the same. When the pleading is verified by the attorney, or any other person, except one of the parties, he must set forth in the affidavit the reasons why it is not made by one of the parties; when a corporation is a party the verification may be made by an officer thereof." Idaho Code Annotated.
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