Griffin v. Asheville Light & Power Co

• Decision Date: 20 December 1892
• Citation: 16 S.E. 423,111 N.C. 434
• Court: North Carolina Supreme Court
• Parties: GRIFFIN et al. v. ASHEVILLE LIGHT & POWER CO. et al.

16 S.E. 423

111 N.C. 434

GRIFFIN et al.

v.ASHEVILLE LIGHT & POWER CO. et al.

Supreme Court of North Carolina.

Dec. 20, 1892.

Verification of Complaint — When Company Estopped from Denting its Incorporation — Appeal.

1. Code, § 258, provides that whenever a party to an action is a nonresident of the county the pleading may be verified by an attorney, who shall state the "knowledge or grounds of his belief on the subject, " when the action is upon a written instrument for the payment of money only, and the instrument is in his possession. Held, in an action on a note, where the complaint was verified by plaintiffs' attorney, that an averment of the possession of the note (no payments being indorsed thereon) is a sufficient allegation of his "knowledge or grounds of belief" as to the material matters in the complaint necessary to be shown by plaintiffs.

2. In-an action on a note signed by a company in its corporate name, it is not necessary to aver its corporate existence, as it is estopped by such signature to deny it.

3. It is error to refuse judgment on a verified complaint because an unverified answer is filed, when the time for verification has not been extended.

4. An appeal lies from the refusal of a final judgment by default on a verified complaint for a sum certain, when no verified answer is filed, and no extension of time for verification is granted.

Appeal from superior court, Buncombe county; Bynum, Judge.

Action by John J. Griffin and John Gribbel, composing the firm of John J. Griffin & Co., against the Asheville Light & Power Company. The complaint, which was filed August 17, 1892, and verified by one of plaintiffs' attorneys, is as follows: "The plaintiffs, complaining of the defendants, allege that the defendant the Asheville Light & Power Company is a corporation duly chartered and existing under and by virtue of the laws of the state of North Carolina. That upon the 15th day of Decern her, 1891, the defendant the Asheville Light & Power Company made its promissory note in writing, dated on that day, and thereby promised to pay to the order of the plaintiffs the sum of $271.50 two months after date. That the defendant J. G. Martin indorsed said note when the same was delivered to the plaintiffs. The said note at maturity was duly presented for payment, and was not paid, and the same was then and there presented for payment, and was not paid, and the same was then and there protested for nonpayment, whereby the plaintiffs were put to the cost of $2.06, protest fees. That no part of said note has ever been paid. Wherefore, the plaintiffs demand judgment against the defendants for the sura of $271.50, with interest on the same from February 15, 1892, together with $2.06 protest fees, and the costs of this action to be taxed by the clerk of the court.* * *Duff Merrick, being first duly sworn, deposes and says that he is of counsel for the plaintiffs, and makes this affidavit in their behalf for the reason that said plaintiffs reside in Philadelphia, Pa., and there is not now time for this complaint to be forwarded to them for verification, and be returned in time to be filed within the first three days of this term, and for the further reason that this action is founded upon a written instrument, of money only, which said written instrument is in affiant's possession. That affiant has read the foregoing complaint, and knows the contents thereof. That the same is true, of his own knowledge, except it be as to matters therein stated on information and belief, and as to those matters he believes it to be true. * * * On the last day of the term, and as the court was about to adjourn, plaintiffs moved for a judgment, as the complaint was verified, and no answer had been filed. The defendants then filed their unverified answer, denying each and every alienation ill the complaint. Plaintiffs still insisted that they were entitled to judgment, as the answer was not verified. The court refused the motion in judgment, for that, as held by the court, the complaint was not verified according to the statute. The plaintiffs objected to the holding of the court, and excepted thereto, and appeal." Reversed.

Chas. A. Moore, for appellants

T. A. Jones and T. F. Davidson, for appellee.

Clark, J. Whenever the party is a nonresident of the county, the pleading may be verified by an agent or attorney, in two cases: First, when the action is upon a written instrument for the payment of money only, and the instrument is in possession of the agent or attorney; second, when all the material allegations of the pleadings are within the personal knowledge or the agent or attorney. Code, § 258; Hammerslaugh v. Farrior, 95 N. C. 135. The affidavit here could be made by the attorney, since the parties he represented were nonresidents, and the action was upon a...