Irwin v. Evans

• Decision Date: 06 June 1887
• Citation: 4 S.W. 693,92 Mo. 472
• Parties: Irwin et al. v. Evans, Appellant
• Court: Missouri Supreme Court

4 S.W. 693

92 Mo. 472

Irwin et al. v. Evans, Appellant

Supreme Court of Missouri

June 6, 1887

Appeal from Scotland Circuit Court. -- Hon. B. E. Turner, Judge.

Reversed and remanded.

Higbee & Raley for appellant.

(1) The circuit court erred in sustaining plaintiff's motion to strike out defendant's amended plea, in the nature of a plea in abatement, and in entering judgment sustaining the attachment. Norvell v. Porter, 62 Mo. 309, 312; Gilkeson v. Knight, 71 Mo. 403, 406; R. S., sec 439. (2) The court erred in overruling defendant's motion to set aside the order striking out the plea of abatement and to grant defendant a new trial thereon. See authorities cited supra. (3) The court erred in overruling defendant's motion for a new trial, and to set aside the judgment, striking out defendant's amended plea in abatement, and to grant defendant a new trial thereon. Authorities cited supra.

Anderson Davis & Hagerman for respondents.

(1) There is nothing in the record showing that any property was levied upon. (2) The evidence upon which the lower court acted is not in the record, and there can be no review. Blizzard v. Phebus, 35 Ind. 284; Freeman on Judge. [3 Ed.] sec. 79; Nicking v. Nesmuth, 15 Ia. 594; Sowden v. Craig, 21 Ia. 580. (3) The affidavit, as made, was insufficient. The fact must appear, where the affiant is not the party, that he at least has a knowledge of the facts to which he swears. Ex parte Bank, 7 Hill, 177; McCabe v. Sumner, 40 Wis. 386; Widner v. Hunt, 4 Ia. 355; Eldridge v. Steamboat, 27 Mo. 595; Hamilton v. Steamboat, 19 Mo. 523; Bridgford v. Steamboat, 6 Mo. 356; Bliss on Code Plead., sec. 173. (4) Affiant did not swear that he was attorney of defendant, and the affidavit was, for that reason, insufficient. Cunningham v. Goelet, 4 Den. 71; Staples v. Fairchild, 3 N.Y. 41. (5) Every presumption is to be indulged in favor of the action of the lower court.

OPINION

Black, J.

Plaintiffs commenced this suit by attachment, and the defendant filed an amended plea in abatement, signed by his attorneys, Higbee & Raley, and verified as follows:

"This affiant, attorney for the defendant, upon his oath, says that the allegations contained in the foregoing plea are true.

"[Signed.] Edward Higbee."

Plaintiffs moved to strike out the plea, because it was not verified by the defendant, but by Higbee, and it did not appear that he had either the knowledge to justify him in making the affidavit, or the authority to make the same for defendant, which motion was sustained, and a judgment entered sustaining the attachment.

The statute, section 438, only requires that the plea shall be verified by affidavit, and it was held in Norvell v. Porter, 62 Mo. 309, that the affidavit of an attorney was a sufficient verification, and we see no reason for departing from what is there said. From the peculiar form of the affidavit, the affiant does not swear to the fact that he is the attorney for the defendant, but the record shows that defendant, by his attorney, Edward Higbee, by leave of the court, filed the amended plea in abatement. This shows that he was recognized by the court as an attorney in the cause for the defendant, and, having authority to appear in the cause, he had authority to make the affidavit.

It would seem the court sustained the motion, upon the ground that the attorney did not, in the affidavit, set out and show that he had a knowledge of the facts stated in the plea, and in support of this view of the case, we are cited to the case of Eldridge v. Steamboat, 27 Mo. 595, where it was held that a complaint under the boat and vessel act, verified as this plea is, was an insufficient verification --...