Britt v. Davis

• Decision Date: 07 February 1908
• Citation: 60 S.E. 180,130 Ga. 74
• Parties: BRITT v. DAVIS.
• Court: Georgia Supreme Court

60 S.E. 180

130 Ga. 74

BRITT v. DAVIS.

Supreme Court of Georgia

February 7, 1908

Syllabus by the Court.

Where a person wrote out and signed a paper in the form of an affidavit for the purpose of obtaining the issuance of a distress warrant, and then procured a justice of the peace to attest it by signing the jurat, but in fact no oath was taken or administered, and nothing was said about an oath, or as to the truth of the statements contained in the paper, this constituted no lawful affidavit, and furnished no basis for the issuing of a distress warrant.

[Ed Note.-For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 1104; vol. 2, Affidavits, § 45.]

Error from Superior Court, Turner County; W. N. Spence, Judge.

Action by D. H. Davis against C. A. Britt. Judgment for plaintiff. Defendant brings error. Reversed.

John B Hutcheson, for plaintiff in error.

T. R Perry and A. J. Davis, for defendant in error.

LUMPKIN J.

A distress warrant was issued by J. F. Lunsford, justice of the peace, on September 28, 1905, in favor of D. H. Davis against C. A. Britt for rent. It was based on what appeared to be an affidavit made by A. J. Davis, attorney at law for D. H Davis. This was drawn in the ordinary form, reciting, "Personally appeared before me," etc., and with the jurat in the words: "Sworn to and subscribed before me this 28th day of September, 1905. [Signed] J. F. Lunsford, J. P." On the trial a verdict was rendered for the plaintiff. A motion for a new trial was refused, and the defendant excepted.

The only point made before us is whether, under the uncontradicted evidence, the paper purporting to be an affidavit was in fact sworn to, so as to furnish a legal basis for the issuance of a distress warrant. The point was raised in two ways: First, by a motion to dismiss the distress warrant; and, second, under the general grounds of the motion for a new trial. The entire evidence bearing on this point was that of A. J. Davis, Esq., who testified as follows: "My recollection is that I wrote out the distress warrant, and Mr. Lunsford, the justice of the peace, was in Mr. Rouse's store. I wrote the paper in Col. Tyson's office, and went and got Lunsford, and I signed the paper in Col. Tyson's office. Mr. Lunsford witnessed the affidavit. I am not positive where Mr. Lunsford was when I signed the paper. I am not positive whether he was in the room or not; whether I signed the paper when I finished it. I know I went after him. I don't know whether I signed it in his presence or not. I am not positive about it. Mr. Lunsford was away when I wrote it. I went after him. I am not positive whether I signed it then and there, where I wrote it, or signed it after the officer came in. I would not say positively which it was. I do not think there was an oral oath administered at the time I signed the affidavit. There was nothing said about an oath. My recollection is that I wrote the paper, and then went and got the justice of the peace, and he witnessed it. I told him I wanted him to witness that affidavit. That is what I went after him for-to get him to witness the affidavit and issue the distress warrant. My recollection is that I told him I wanted to make that affidavit as a basis for a distress warrant. The officer understood I was swearing to the paper. I think that was his understanding, for I went to him for that purpose."

In order to procure the issuing of a distress warrant, the applicant, or his agent or attorney, must make oath in writing as to the sum claimed to be due for rent. Civ. Code 1895, § 4818. Merely to write out a paper in the form of an affidavit and sign it is not sufficient, without more, to constitute the taking of an oath; nor is it sufficient that at some time after such paper is signed a justice of the peace should sign the jurat. The jurat to an affidavit is that part of it, or addition to it, where the officer certifies that it was sworn to before him. 1 Enc. Pl. & Pr 316. It seems to have been thought by some that the mere signing of the jurat by the officer, even though the person purporting to make it has signed the paper at a different time, and without any administration of an oath, or anything tantamount thereto, and sometimes even in the absence of the purported affiant, is sufficient. But this is a mistake. Whether an oath made to obtain the issuance of a distress warrant is sufficient may be tested by the question whether a conviction for perjury or false swearing could be predicated upon it, if what was stated were not true. The signature of the person claimed to be an affiant, accompanied by the jurat signed by the officer, is prima facie sufficient evidence that the oath was administered; but, if in fact no oath was administered; a false certificate by the magistrate to that effect would not take the place of the administration of the oat. If the paper appears on its face to be regular, one who attacks it carries the burden of showing that it was not in fact legally executed; but if the evidence shows that no oath was administered, nor anything done which the law deems sufficient as amounting to the administration of an oath, the paper claimed to be an affidavit will not suffice as such, nor furnish a basis for the issuance of a distress warrant. If the evidence as to what took place is conflicting, the question is one of fact for submission to the jury. A statement under oath differs from unsworn statements, in that it is made under a solemnity which is supposed to affect the...