Austin v. Sanders

Citation492 N.E.2d 8
Decision Date25 April 1986
Docket NumberNo. 13S04-8604-CV-383,13S04-8604-CV-383
PartiesMaryland L. AUSTIN, Appellant (Petitioner Below), v. Carlton E. SANDERS, Appellee (Respondent Below).
CourtIndiana Supreme Court

Maryland L. Austin, pro se.

Edwin S. Sedwick, Sedwick & Sedwick, Jeffersonville, for appellee.

SHEPARD, Justice.

These parties were opponents in the 1984 election. After Carlton Sanders was declared the winner, Maryland Austin filed petitions seeking a recount and contesting the results. The trial court dismissed both petitions and the Court of Appeals affirmed by a divided vote in an unpublished opinion. Both courts concluded that dismissal was appropriate because Austin did not properly verify the information contained in her petitions. We grant transfer and reverse.

The statutes require that each of the petitions be verified. The recount statute provides that the "candidate desiring a recount of votes shall file a verified petition." Ind.Code Sec. 3-1-27-3. The statute permitting an election contest specifies that the "petition shall be verified by the contestor." Ind.Code Sec. 3-1-28-4. The meaning of these terms is not defined in Title 3. Ind.Code Sec. 3-1-1-2. However, Ind.Code Sec. 34-1-67-1 says: "The word, 'verified', when applied to pleadings, means supported by oath or affirmation in writing."

Both of Austin's petitions contain the same language, which she submits is adequate:

I affirm under penalty of perjury that the statements in the foregoing Petition are true and correct to the best of my information and belief. [Signed] Maryland Lewis Austin

As a basis for this argument, Austin cites Ind.Rules of Procedure, Trial Rule 11(B), which provides:

Verification by Affirmation of Representation. When in connection with any civil or special statutory proceeding it is required that any pleading, motion, petition, supporting affidavit, or other document of any kind, be verified, or that an oath be taken, it shall be sufficient if the subscriber simply affirms the truth of the matter to be verified by an affirmation or representation in substantially the following language:

"I (we) affirm, under the penalties for perjury, that the foregoing representation(s) is (are) true. (Signed) __________"

Any person who falsifies an affirmation or representation of fact shall be subject to the same penalties as are prescribed by law for the making of a false affidavit. [Emphasis added.]

Appellee cites State ex rel. Hodges v. Kosciusko Circuit Court (1980), 273 Ind. 101, 402 N.E.2d 1231, in which we said:

This Court has held that "[v]erification ... includes both the actual swearing to the truth of the statements by the subscriber and also the certification thereto by the notary or other officer authorized by law to administer oaths." Gossard v. Vawter, (1939) 215 Ind. 581, 584-86, 21 N.E.2d 416, 417, quoting In re James Passero & Sons, (1933) 237 App.Div. 638, 216 N.Y.S. 661, 663.

Hodges, 273 Ind. at 104, 402 N.E.2d at 1233.

While this language was quite direct, it was also dicta. Harvey Dale Tucker and John Kleeman, the petitioners in Hodges, did not verify that the statements in their petition were true. The petitioner in the case cited in Hodges, Garrett Gossard, had not verified the truth of his petition in any way, sworn or unsworn. Under any definition of the word "verify" they were both eligible for dismissal.

The case at bar thus poses a question which was not before the Court in either Hodges or Gossard: has a party who verifies the truth of his petition in accordance with Trial Rule 11(B) successfully invoked the jurisdiction of the trial court or is he required to have his verification sworn before an officer authorized to administer oaths?

The essential purpose of a verification is that the statements be made under penalty or perjury. The Trial Rule permits this to be done in most situations, including "special statutory proceedings," without the aid of a notary or other officer authorized to administer oaths.

This purpose also sheds light on the issue raised by appellee concerning the form of the verification. He asserts that even if Austin was entitled to verify her petition in accordance with Trial Rule 11(B), she has not done so in language which conforms substantially with the form specified in the Rule; she verified that her petition was true "to the best of my information and belief."

Whether the allegations of a...

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20 cases
  • In re Paternity of H.R.M.
    • United States
    • Court of Appeals of Indiana
    • April 20, 2007
    ...follows . . ." was insufficient to constitute a verification. As did the Bentz court, we note that our supreme court in Austin v. Sanders, 492 N.E.2d 8, 10 (Ind.1986), held the statement, "I affirm under penalty of perjury that the statements in the foregoing Petition are true and correct t......
  • State ex rel. Indiana State Bd. of Dental Examiners v. Judd, 36A01-8911-CV-476
    • United States
    • Court of Appeals of Indiana
    • June 6, 1990
    ...is important because the fundamental purpose of verification is to subject the petitioner to the penalties for perjury. Austin v. Sanders (1986), Ind., 492 N.E.2d 8, 9; Jaske v. State (1989), Ind.App., 539 N.E.2d 492, 495, reh'g granted, vacated on other grounds, (1990), 553 N.E.2d 181. Whi......
  • Smith v. King, 45A03-9907-CV-287.
    • United States
    • Court of Appeals of Indiana
    • September 24, 1999
    ...is (are) true.'" The essential purpose of a verification is that the statements be made under penalty of perjury. Austin v. Sanders, 492 N.E.2d 8, 9 (Ind.1986). In this case, Smith's reference to a federal statute does not mean that, if he committed perjury, he would be accountable only in ......
  • Wilkins v. Superintendent
    • United States
    • U.S. District Court — Northern District of Indiana
    • April 11, 2016
    ...and 364, respectively. "The essential purpose of a verification is that the statements be made under penalty of perjury." Austin v. Sanders, 492 N.E.2d 8, 9 (Ind. 1986). I.C. § 35-34-1-2.4 prescribes a method of verification without the presence of a notary or other officer authorized to ad......
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