Alford v. McCormac

• Citation: 90 N.C. 151
• Court: United States State Supreme Court of North Carolina
• Decision Date: 28 February 1884
• Parties: MARY A. ALFORD v. E. L. MCCORMAC.

90 N.C. 151

MARY A. ALFORD

v.E. L. MCCORMAC.

Supreme Court of North Carolina.

February Term, 1884.

CIVIL ACTION tried at January Term, 1884, of ROBESON Superior Court, before MacRae, J.

The defendant excepted to the ruling of the court below and appealed from the judgment rendered.

Messrs. Rowland & McLean, for plaintiff .

Messrs. J. D. Shaw, T. A. McNeill and Frank McNeill, for defendant .

MERRIMON, J.

This action is founded upon a promissory note properly pleaded. The plaintiff made the usual affidavit of verification of the complaint, except that she failed to subscribe her name to it. She did, however, subscribe the complaint.

The defendant filed his answer without verification. Thereupon, at the appearance term the plaintiff moved for judgment as in case no answer had been filed. The court allowed this motion, and gave judgment in favor of the plaintiff for the amount of her debt and costs. The defendant excepted, upon the ground that as the plaintiff failed to subscribe her name to the affidavit of the verification, the complaint was not verified as required by law, and he could not, therefore, be required to verify his answer.

It is required by THE CODE, §257, that “every pleading in a court of record must be subscribed by the party or his attorney; and when any pleading is verified, every subsequent pleading, except a demurrer, must be verified also.”

This court has repeatedly held in construing this section that if a pleading be verified, and the subsequent one shall not be, the latter may be set aside and diregarded; and in case the plaintiff verifies his complaint, and the defendant fails to verify his answer, the plaintiff may take judgment as if no answer had been filed. THE CODE, §385; Harkey v. Houston, 65 N. C., 137; Alspaugh v. Winstead, 79 N. C., 526; Wynne v. Prairie, 86 N. C., 73; Rogers v. Moore, Ib., 85.

So that the judgment was regular and proper, unless, as the defendant contends, the complaint was not duly verified, because the plaintiff failed to subscribe the affidavit of verification.

The verification of pleadings must be by affidavit. THE CODE, §258. But the statute does not in terms or specifically require that it shall be subscribed by the affiant, and it need not be, unless an affidavit is incomplete and inoperative without it.

An affidavit is defined to be “an oath or affirmation reduced to writing, sworn or affirmed to before some officer who has authority to administer it.” Another author defines it to be “an oath in writing, sworn before some judge or officer of a court, or other person legally authorized to administer it; a sworn statement in writing; a statement in writing of one or more matters of fact, signed by the party making it, and sworn to before an authorized officer.” Burrill Law Dict. and Bouvier Law Dict.-- Affidavit.

The essential requisites are, apart from the title in some cases, that there shall be an oath administered by an officer authorized by law to administer it, and that what the affiant states under such oath shall be reduced to writing before such officer. The signing or subscribing of the name of the affiant to the writing is not generally essential to its validity; it is not, unless some statutory...