136 Ga. 388 | Ga. | 1911
The plaintiff in error and the defendant in error (hereinafter called, respectively, plaintiff and defendant), by virtue
Counsel for the defendant contend in their brief that neither the exceptions, nor the amendment offered, were properly verified, and that this fact justified the court in dismissing the former and in refusing to allow the latter. The record does not disclose upon what grounds the motion of the defendant to dismiss the exceptions was predicated, nor upon what ground the court dismissed the exceptions and refused to allow the amendment thereto; and if the failure properly to verify the exceptions and the amendment justified the court in making the rulings complained of, his judgment should be sustained. The affidavit to the exceptions filed was made by Courtland S. Winn, and, after stating that he was administrator of the estate involved and was a party to the arbitration, contained only the following averment: .“That the above and foregoing suggestions and exceptions filed by deponent at the return term at which said award was made, to the .best of deponent’s knowledge and belief, are true.” The body of the affidavit to the amendment is as follows: “Personally appeared before me Courtland S. Winn, who on oath says that the facts stated' in the foregoing amended petition are true to the best of his knowledge and belief.” Civil Code (1910), § 5049, omitting a provision in the latter part as to the time of trial, is as follows: '“When said award shall have been returned to said court and entered upon its minutes, as provided in the previous section of this code, either of the parties may suggest, on oath, at the term to which said award is returned, that the award was the result of accident, or mistake, or the fraud of some one or all of the arbitrators or parties, or is otherwise
Civil Code (1910), § 5305, provides that when an execution shall issue, or be proceeding illegally against the property of any person and be levied thereon, ‘“such person may make oath in writing, and shall state the cause of such illegality.” We can see no reason for permitting an oath, under a requirement that exceptions to an award of arbitrators be '“on oath” to be different from an oath under the requirements of the section above referred to, providing that the person filing an illegality to an exception “may make oath in writing;” and in the case of Sprinz v. Vannucki, 80 Ga. 774 (6 S. E. 816), it was ruled: “The grounds of an affidavit of illegality must be verified positively. An oath qualified by the words, ‘to the best of his knowledge and belief/ is not sufficient, though the oath be made by an executor to an affidavit of illegality filed to an execution against his testator.” See Stancel v. Puryear, 58 Ga. 445; Sharp v. Kennedy, 50 Ga. 208; Bryan v. Ponder, 23 Ga. 480; Thompson v. Davitte, 59 Ga. 473 (14); 1 Enc. Pl. & Pr. 321, 322; 2 Cyc. 24, 25. In the case of Martin v. Lamb, 77 Ga. 252 (3 S. E. 10), it was decided that “A plea of non est factum, or of non-partnership, sworn to by the defendant “to the best of his knowledge and belief,” does not cast the onus upon the plaintiff, but only entitles the defendant to go to the jury and establish his defense;” and on page 256, Bleckley, C. J., said: “Before the constitution of 1868, a plea of non est factum had to be sworn to— not to the best of one’s knowledge and belief, .but sworn to. . . An affidavit ‘to the best of his knowledge and belief’ commits the affiant to almost nothing.” It has been held that when the plaintiff in attachment makes an affidavit for an attachment to issue thereon, the grounds of the attachment must be sworn to positively, and it is not sufficient for affiant to state that he swears to such grounds to the “best of his knowledge and belief.” See Bruce v. Conyers, 54 Ga. 678. Civil Code (1910), § 5085, provides that “the party seek
