Burmester v. Moseley

• Decision Date: 04 July 1890
• Citation: 33 S.C. 251,11 S.E. 786
• Parties: Burmester. v. MoSELEY et al. Lilienthal et al. v. Same.
• Court: South Carolina Supreme Court

11 S.E. 786

33 S.C. 251

Burmester.

v.MoSELEY et al.

Lilienthal et al.

v.Same.

Supreme Court of South Carolina.

July 4, 1890.

Pleading—Verification.

Under Code S. C. § 178, providing that the verification of a pleading "must be to the effect that the same 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, " where the allegations of the complaint imply that they are all made on plaintiff's knowledge, while the verification shows that some of them are made on information and belief, such verification must also show which allegations are made on knowledge, and which on information and belief.

Appeal from common pleas circuit court of Charleston county.

Assumpsit by John W. Burmester against Julia A. Moseley and others, and by F. J. Lilienthal & Son against the same defendants, on a promissory note. Defendant Julia A. Moseley served answer within 20 days of service of complaint by plaintiffs, John W. Burmester and F. J. Lilienthal & Son. Plaintiffs moved for judgment by default, on the ground that the answer was not verified. Defendant resisted, claiming it was not necessary to verify answer, as complaint was not veri fied. Motion granted, and appeal taken. The complaint and verification referred to in the opinion are as follows: "The plaintiff above named complaining of the defendant alleges (1) that heretofore the defendant Julia A. Moseley, carrying on business as the Edisto Lumber Company, made her promissory note in writing, dated on the 6th day of April, 1888, at Charleston, S. C, and thereby promised to pay to the order of the firm of Wm. Burmester & Co. one hundred and five dollars, thirty days after said date; (2) that at the time of making said note the defendant A. Bequest joined in the making of said note by indorsing his name thereon as a maker for value before its delivery to the said firm of Wm. Burmester & Co.; (3) that at the time of the accrual of said cause of action the plaintiff John W. Burmester, together with H. C. Wohlers, were copartners together, comprising said firm of Wm. Burmester & Co.; that thereafter and heretofore the said copartners dissolved their copartnership, and H. C. Wolhers duly assigned, transferred, and set over to the plaintiff all his interest in and to the said note; (4) that no part thereof has been paid, and that the whole of said sum of one hundred and five dollars is still justly due and owing by said defendant to the plaintiff. Wherefore plaintiff prays judgment against the said defendant for the sum of one hundred and five dollars, together with interest from the 6th day of May, 1888, together with the cost of this action."

"John W. Burmester, plaintiff in this action, being duly sworn, says that the foregoing complaint is true of his own knowledge, except as to those matters which are therein stated on his informaton or belief, and as to those matters he believes it to be true. " Code S. C. § 178, provides that the verification of a pleading " must be to the effect that the same is true...