Cohoon v. Everton

• Decision Date: 05 March 1924
• Docket Number: 9.
• Citation: 121 S.E. 612,187 N.C. 369
• Parties: COHOON v. EVERTON.
• Court: North Carolina Supreme Court

121 S.E. 612

187 N.C. 369

COHOON v. EVERTON.

No. 9.

Supreme Court of North Carolina

March 5, 1924

Appeal from Superior Court, Tyrrell County; Allen, Judge.

Action by J. G. Cohoon against C. R. Everton. Judgment for plaintiff, and defendant appeals. New trial.

This was a civil action brought by plaintiff against defendant.

The first section of the complaint alleges:

"That the defendant, C. R. Everton, is justly indebted to the plaintiff, J. G. Cahoon, in the sum of $678.98 for merchandise sold and delivered to the defendant as shown by itemized account thereto attached and made a part of this original complaint and marked Exhibit A."

The second section alleges:

"That there is no counterclaim or set-offs against the same; that all of the same is now due and unpaid; that the plaintiff had demanded the same of the defendant, and payment has been refused."

The defendant answering the first section of the complaint, says:

"That section 1 is hereby denied, and that he does not owe the plaintiff any such sum of money."

In answer to the second section he says:

"That section 2 is denied, that there has been no demand and refusal to pay sum alleged."

The summons in the cause is dated July 18, 1923, returnable August 1, 1923. It and the complaint were served July 27, 1923, on the defendant. The record shows that the complaint was "sworn and subscribed to before me this 18th day of July, 1923." The oath was administered by the clerk, but the plaintiff did not subscribe his name to the oath.

The answer of the defendant was sworn to on August 18, 1923, and was filed on August 20, 1923--superior court of Tyrrell county for civil cases began on Tuesday August 27, 1923.

In the superior court the following order was made:

"It appearing to the court that the answer to sections 1 and 2 is too indefinite and uncertain, it is ordered that he make the same more definite and certain at this term of the court. And he is given until to-morrow morning at 9 o'clock to do so."

It appears from the record that the defendant's counsel claimed the defendant was sick, and they were unable to comply with the order. It further appears:

"The court heard the evidence as to the condition of the defendant about 3 o'clock to-day, but had previously notified the defendant's counsel as early as Monday evening when the calendar was examined that the case would likely be tried, and requested that they notify their client.

The court, meaning no reflection upon the counsel in the case, finds as a fact that the defendant came to Columbia Monday night, saw his counsel, and returned to his work about 14 miles away. And on Tuesday returned to his home about 20 miles from here, claiming to be sick. The court, after carefully examining his witnesses as to his sickness, is not satisfied that he is too sick to attend court, and therefore further finds that the answer which he has disclosed to his counsel is also frivolous and therefore stricken out; no physician's certificate being produced, and the physician who attended him two weeks ago being in court."

The defendant excepted to this order, and assigned error.

"The denial is based upon the fact that the defendant has been here this week and seen his attorneys, and has written an intelligent letter to his counsel, which letter is attached and marked Exhibit A. The counsel are not sufficiently informed to make the pleading more definite, but say they believe that they can make the answer more definite. Motion by defendant for continuance on the ground that the action has not been at issue for but 7 days. Motion denied."

The defendant excepted, and assigned error.

The cause was tried, and a verdict rendered for plaintiff, and judgment signed for plaintiff, in accordance with the verdict. Defendant's counsel did not participate in the trial. Defendant excepted, and assigned error, and appealed to this court.

Swain & Norris, of Apex, for appellant.

T. H. Woodley, of Columbia, and Aydlett & Simpson, of Elizabeth City, for appellee.

CLARKSON J.

The defendant takes the position that the complaint was not verified according to law, as the plaintiff, when he swore to the complaint, did not subscribe his name to the oath. We do not think this necessary under the statute, although the better practice is to have it subscribed. C. S. § 529, is as follows:

"The verification must be in substance 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; and must be by affidavit of the party, or if there are several parties united in interest and pleading together, by one at least of such parties acquainted with the facts, if the party is in the county where the attorney resides and is capable of making the affidavit." Currie v. Mining Co., 157 N.C. 218, 72 S.E. 980.

We commend what Merrimon, J., said in Alford v. McCormac, 90 N.C. 153:

"While the law is as we have expounded it, the general practice in this state has been to require the affiants to subscribe their names to the affidavits made by them. This is a wholesome practice, and we commend it. It ought to be observed by all officers who take affidavits for any purpose, not because it is essential, but because it serves to supply strong additional evidence that the affiant swore what is set down in the writing, in case it should at any time be brought in question. The certificate of the officer taking it is official, but not conclusive evidence of what appears to have been sworn. As we have said, it is sometimes required by statute that affidavits shall be subscribed by the parties making them. Of course, in such cases, they would be incomplete and inoperative without the signature of the affiant subscribed by him."

The exceptions raise some interesting questions under our practice. It will be seen from the record that the summons is dated ...