Hecht v. Freisleben
| Decision Date | 05 March 1888 |
| Citation | 5 S.E. 475,28 S.C. 181 |
| Parties | HECHT et al. v. FREISLEBEN. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Spartanburg county ALDRICH, Judge.
Suit in attachment brought by Jacob Hecht & Co. against Abraham Freisleben, upon account for goods sold and delivered. Defendant appeals from decisions of the lower court declaring affidavit of attachment sufficient, etc.
J. S R. Thomson and Carlisle & Hydrick, for appellant.
Duncan & Sanders, for respondents.
In the complaint filed in this action it was alleged (1) that the plaintiffs are copartners under the name and style stated (2) that the defendant, on the 1st of October, 1886, became indebted to the plaintiffs in the sum specified upon an account for goods sold and delivered, a copy of the same being exhibited with the complaint; (3) that the amount of said account will become payable on the 1st of February, 1887, no part of the same having been paid; (4) that the defendant has disposed of and secreted his property with intent to hinder, delay, and defraud his creditors, and this action is brought to enable the plaintiffs to attach the property of defendant. The complaint was not verified by any one of the plaintiffs, but by their attorney in the form following: " South Carolina, Spartanburg County: C. P. Sanders, being duly sworn, says, he is an attorney for the plaintiffs in the above entitled action; that the foregoing complaint is true of his own knowledge, except as to matters therein stated on information and belief, and as to those matters he believes it to be true; that the sources of his knowledge and information are the possession of a verified, itemized statement of the account sued upon, the admissions and statements of the defendant, and the statements of E. E. Bomar, James Geddes, and others; that the reason this verification is not made by one of the plaintiffs is that neither of them is in this county or state, in which dependent is a resident." This affidavit was sworn to before a notary public on the 19th of January, 1887, and the action was commenced before the debt became payable, under the provisions of the act of 1883, (18 St. 491.) The defendant served a copy of his answer, which was not verified, denying each and every allegation of the complaint, and the same was immediately returned upon the ground that the answer was not verified. The case was docketed on calendar 3, and, when called, the plaintiffs moved for judgment by default, and the motion was resisted upon two grounds: (1) That such a complaint as this could not be verified by an attorney; (2) if it could, the verification was insufficient in form and substance. The circuit judge overruled both of these grounds, holding that the complaint was properly verified. After this ruling was made, the defendant moved for leave to serve a verified answer, and this motion was granted, his honor, of his own motion, imposing as terms of the leave granted that the defendant should pay all the costs accrued up to that time. The defendant did not comply with the condition of this order, but appealed from the rulings and orders of the circuit judge, upon the following grounds: (1) Because the complaint could not be verified by an attorney; (2) because the verification was insufficient; (3) because the defendant could not be required to pay all the costs which had accrued, as a condition of being allowed to serve a verified answer; (4) that the costs of ex parte commissions, which had been issued after the answer was returned for want of verification, could not be taxed as a part of the costs accrued at the time of the order.
The Code provides, in section 177, that when "any pleading is verified, every subsequent pleading, except a demurrer, must be verified also;" and in the next section (178) it declares how a pleading shall be verified,--it It seems to us that the true construction of this language manifestly is that there are two cases in which an attorney may, in the absence of the party from the county, verify a complaint: (1) where the action is founded upon a written instrument for the payment of money only, and such instrument is in the possession of the attorney; (2) Where all the material allegations of the complaint are within the personal knowledge of the attorney. The test, therefore, in every case is whether it falls under either of these classes. Now it is quite plain that the present case does not fall under either of these classes. The action is not founded upon a written instrument for the payment of money only, and there is no pretense that all the material allegations of the complaint were within the personal knowledge of the attorney who undertook to verify the complaint. We think, therefore, that the circuit judge erred in holding that the complaint was such an one as could be verified by the attorney.
This view would render it unnecessary to consider the other questions raised by the appeal, but as they present questions of practice which it is desirable to have settled, we will proceed to consider them. If the action was such as would have justified a verification of the complaint by the attorney, the next inquiry is whether the verification adopted in this case, a copy of which is set out above, was insufficient in form and substance. On reading the complaint and verification, it is impossible to tell what allegations are made on knowledge and what on information and belief, and yet it is quite certain, from the language used in the verification, that some of the allegations were made on knowledge and some on information and belief, for the language is: "That the foregoing complaint is true of his own knowledge except as to matters therein stated on information and belief, and as to those matters he believes it to be true." Where the allegations of a pleading are based, some of them on knowledge, and others on information and belief, they ought to be so stated as to enable the other party to understand which of the allegations are made on knowledge, and which upon information and belief. Here, however, all the allegations of the complaint, if looked at alone,...
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