Alspaugh v. Winstead
| Decision Date | 30 June 1878 |
| Citation | 79 N.C. 526 |
| Court | North Carolina Supreme Court |
| Parties | J. W. ALSPAUGH v. W. H. WINSTEAD and another. |
OPINION TEXT STARTS HERE
MOTION for judgment for want of an answer, heard at Spring Term, 1878, of FORSYTHE Superior Court, before Buxton, J.
The plaintiff filed his complaint at the appearance term with a verification in the following words: J. W. Alspaugh being duly sworn, says, that the facts set forth in the foregoing complaint of his own knowledge are true, except as to those matters stated upon information and belief, and as to those matters, he believes it to be true. (Signed) J. W. Alspaugh. Sworn to and subscribed before me, this 15th day of May, 1878. (Signed) C. S. Hauser, C. S. C.
The defendants filed separate unverified answers. At the close of the term, the plaintiff demanded judgment upon his complaint, as for want of an answer, which was refused by the Court, on the ground of the insufficiency of the plaintiff's affidavit, and he appealed.
Mr. J. C. Buxton, for plaintiff .
Mr. A. W. Tourgee, for defendants .
SMITH, C. J. (After stating the case as above.)
The only question before us is as to the form of the verification to the complaint, and its compliance with the requirements of the Code:--The complaint shall contain a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition, and each material allegation shall be distinctly numbered. C. C. P., § 93(2). The verification must be to the effect that the same (the pleading) is true to the knowledge of the person making it, except as to those matters stated on information and belief, and as to those matters, he believes it to be true. Ibid. § 117.
These seem to be the only provisions of the Code applicable to the subject. The plaintiff swears that the facts set out in his complaint, except, &c., are true, that is, that they are truly stated,--an expression equivalent to an averment of the truth of the complaint itself. We do not concur with the defendants' counsel in his criticism put upon the words of the statute, and in the distinction he drew between a statement of facts and the facts themselves. The argument was that facts are truths, and that to say a fact is true, is but asserting that truth is true--a meaningless proposition. The form of the verification in our opinion admits no such absurd interpretation of its words, and their fair and reasonable meaning is that the facts, as stated, are correctly and truly stated; and this is all the...
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North Carolina Corp. Commission v. Atlantic Coast Line R. Co.
... ... The ... court has the power to enter final judgment here, and on ... proper occasions has done so. Code, § 957; Alspaugh v ... Winstead, 79 N.C. 526; Griffin v. Light Co., ... 111 N.C. 438, 16 S.E. 623; Cook v. Bank, 130 N.C ... 184, 41 S.E. 67. Final judgment ... ...
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Davis v. Greensboro Warehouse & Storage Co.
... ... in Railroad Connection Case, 137 N.C. 21, 49 S.E. 191, citing ... Code, § 957 (since Rev. § 1542; C. S. § 1412); Alspaugh ... v. Winstead, 79 N.C. 526; Griffin v. Light Co., ... 111 N.C. 438, 16 S.E. 423; and it was there said that ... "final judgment has been entered ... ...
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Griffin v. Asheville Light & Power Co
...been sufficient, it was error to refuse the plaintiffs judgment because an unverified answer was tiled. Code, §§ 257, 385; Alspaugh v. Winstead, 79 N. C. 526; Alford v. McCormac, 90 N. C. 151. It is true the court might, in its discretion, have extended the time for the defendant to file it......
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Kruger v. Commerce
...was in no sense an answer, and the plaintiff is entitled to have judgment by default and inquiry entered here, as was done in Alspaugh v. Winstead, 79 N. C. 526; Code, § 957. Had the foreign receiver come in and made himself a party to the action, and put his affidavit in the form of a veri......