Burgess v. Martin
| Court | Supreme Court of Alabama |
| Writing for the Court | McCLELLAN, J. |
| Citation | 20 So. 506,111 Ala. 656 |
| Decision Date | 16 June 1896 |
| Parties | BURGESS ET AL. v. MARTIN. |
20 So. 506
111 Ala. 656
BURGESS ET AL.
v.
MARTIN.
Supreme Court of Alabama
June 16, 1896
Appeal from chancery court, Pickens county; W. H. Tayloe, Chancellor.
Action by D. R. Burgess & Co. against J. K. P. Martin. From the decree, plaintiffs appeal. Affirmed.
The bill in this case was filed by the appellants against the appellee, J. K. P. Martin, as surviving partner of the firm of A. J. & J. K. P. Martin, and prayed for a discovery of the assets of said firm, for the appointment of a receiver to take charge thereof, and to subject certain notes, accounts, and choses in action to the payment of complainants' claim. The appeal is taken from a decree of the chancellor overruling certain demurrers, and sustaining others, and in discharging the receiver.
Daniel Collier and Nesmith & Nesmith, for appellants.
Johnston & Curry and E. D. Willett, for appellee.
McCLELLAN, J.
The abstract shows that there was a submission to the chancellor "upon demurrer and other pleadings and the testimony as condensed above," and that subsequently the chancellor rendered a decree "overruling demurrers 1, 2, 3, and 10, and sustaining those from 4 to 9, inclusive, and sustaining the appeal [from the register's order appointing a receiver], and discharging the receiver." The abstract nowhere and in no way informs us what specifications of demurrer were set forth in assignments of demurrer "from 4 to 9, inclusive"; and we are therefore unable to review the decree sustaining said assignments. O'Neal v. Simonton (Ala.) 19 So. 8; Iron Co. v. Andrews (Ala.) 21 So. 440.
It is shown, however, that one ground of demurrer was that the bill, which sought discovery, appointment of receiver, etc., was not properly verified. We are not advised whether this assignment was among those numbered from 4 to 9, nor what the action of the court was upon it; but we deem it not improper to say that this objection to the bill is well taken. The allegations of the bill are sworn to by a person named, "as true to the best of his knowledge, information, and belief." This, upon the construction most favorable to complainants, means that the affiant has knowledge that some of the averments of the bill are true; that, while he does not know, he has been informed and believes, that others of the averments are true; and that, as to yet other averments, he has neither knowledge nor information, but, without knowing the facts or ever having been informed of their truth, he...
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Robertson v. State, 6 Div. 643
...here that this affidavit is wholly insufficient to support the decree adjudging him in contempt. In Burgess & Co. v. Martin, 111 Ala. 656, 20 So. 506, the Supreme Court, speaking through Mr. Justice McClellan said: "The allegations of the bill are sworn to by a named 'as true to th......
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Board of Water and Sewer Com'rs of City of Mobile v. Spriggs, 1 Div. 877
...nor information of their truth,' and, 'an affidavit of belief in their truth simply amounts to nothing.' Burgess & Co. v. Martin, 111 Ala. 656, 20 So. 506; Brooks v. Everett, 271 Ala. 380, 124 So.2d The verification in the instant case is merely that affiants say that the facts stated i......
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Green v. Martin, 6 Div. 622.
...66 So. 686; Smith-Dimmick Lumber Co. v. Teague, Barnett & Co., 119 Ala. 385, 390, 24 So. 4; Burgess & Co. v. Martin, 111 Ala. 657, 20 So. 506; Moritz & Weil v. Miller, Schram & Co., 87 Ala. 331, 6 So. 269. It is stated in the oath (here): (1) That the verification is upon in......
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Sulzby v. Palmer, 1
...such pleas that has continued to the present time. The cases on this point, cited by appellee's counsel, are inapt. In Burgess v. Martin, 111 Ala. 656, 20 So. 506, where the plaintiff was praying for discovery and for the appointment of a receiver, the court gave approval to the expression,......
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Robertson v. State, 6 Div. 643
...petitioner here that this affidavit is wholly insufficient to support the decree adjudging him in contempt. In Burgess & Co. v. Martin, 111 Ala. 656, 20 So. 506, the Supreme Court, speaking through Mr. Justice McClellan said: "The allegations of the bill are sworn to by a named 'as true to ......
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Board of Water and Sewer Com'rs of City of Mobile v. Spriggs, 1 Div. 877
...nor information of their truth,' and, 'an affidavit of belief in their truth simply amounts to nothing.' Burgess & Co. v. Martin, 111 Ala. 656, 20 So. 506; Brooks v. Everett, 271 Ala. 380, 124 So.2d The verification in the instant case is merely that affiants say that the facts stated in th......
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Green v. Martin, 6 Div. 622.
...395, 66 So. 686; Smith-Dimmick Lumber Co. v. Teague, Barnett & Co., 119 Ala. 385, 390, 24 So. 4; Burgess & Co. v. Martin, 111 Ala. 657, 20 So. 506; Moritz & Weil v. Miller, Schram & Co., 87 Ala. 331, 6 So. 269. It is stated in the oath (here): (1) That the verification is upon information a......
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Sulzby v. Palmer, 1
...such pleas that has continued to the present time. The cases on this point, cited by appellee's counsel, are inapt. In Burgess v. Martin, 111 Ala. 656, 20 So. 506, where the plaintiff was praying for discovery and for the appointment of a receiver, the court gave approval to the expression,......