Leigh v. Green

• Decision Date: 23 April 1902
• Docket Number: 9,838
• Citation: 90 N.W. 255,64 Neb. 533
• Parties: ALVIN L. LEIGH, APPELLEE, v. HENRY S. GREEN, APPELLANT
• Court: Nebraska Supreme Court

90 N.W. 255

64 Neb. 533

ALVIN L. LEIGH, APPELLEE, v. HENRY S. GREEN, APPELLANT

No. 9,838

Supreme Court of Nebraska

April 23, 1902

APPEAL from the district court for Knox county. Heard below before ROBINSON, J. Rehearing of case reported in 62 Neb. 344. Judgment of reversal adhered to.

This case was taken to the supreme court of the United States, on writ of error issued by Melville W. Fuller, Chief Justice July 22, 1902. The federal question involved is a claim on behalf of plaintiff in error (appellee in this court) that sections 4 and 6 of article 5 of chapter 77, Compiled Statutes, is in conflict with the fourteenth amendment to the constitution of the United States.--REPORTER.

REVERSED AND REMANDED.

W. R Green, James McCabe, Reed & Gross and Smyth & Smith, for appellant.

C. C McNish, Anderson & Keefe, Woolworth & McHugh, J. C. Crawford and A. R. Oleson, contra.

POUND, C. BARNES and OLDHAM, CC. concur.

OPINION

POUND, C.

The issues of fact and law involved in this appeal are sufficiently stated in the former opinion. Many of the conclusions reached in that opinion are acquiesced in by the parties, and have not been reargued. Four propositions, however, are insisted upon by counsel for appellee as having been overlooked or wrongly determined, and require consideration. These propositions are whether an affidavit for service by publication, made upon information and belief only, is sufficient; whether the description of the land in the published notice was sufficient to give the court jurisdiction in the tax foreclosure proceedings in question; whether, under a proper construction of sections 4 and 6, article 5, chapter 77, Compiled Statutes, foreclosure of a tax lien by suit against the land itself will bar lienholders not made parties to the proceeding and not served with process; and, finally, whether, if such is the proper construction of said sections, they are constitutional and valid, in view of the constitutional provisions, both federal and state, against deprivation of property without due process of law.

With respect to the first question, we may remark that it is by no means clear that the affidavit in question is to be treated as one upon information and belief. Examination of the many cases in which affidavits have been held insufficient because made upon information and belief only, discloses that in such cases the affiant stated that he believed so and so (Armstrong v. Sanford, 7 Minn. 49; Thompson v. Higginbotham, 18 Kan. 42); or that he had reason to believe and did believe it (Clarke v. Nebraska Nat. Bank, 57 Neb. 314, 77 N.W. 805; Ex parte Spears, 88 Cal. 640, 26 P. 608; Ex parte Morgan, 20 F. 298); or that he was informed and believed so and so (Ex parte Rowland, 35 Tex. Crim. 108, 31 S.W. 651); or that, on his "best knowledge, information and belief," certain facts were true (Ex parte Lane, 6 F. 34); or that certain statements in a pleading were true except as to statements on information and belief and that such statements were believed to be true. City of Atchison v. Bartholow, 4 Kan. 124; Attorney General v. Bank of Chenango, Hopk. Ch. [N.Y.] 671. In another class of cases, more nearly like the one at bar, the affiant states that certain facts are true, as he believes, or as he is informed and believes. State v. County Commissioners, 49 Neb. 51, 68 N.W. 336; State v. Mayor, 4 Neb. 260; Clarke v. Nebraska Nat. Bank, 57 Neb. 314, 77 N.W. 805; Mowry v. Sanborn, 65 N.Y. 581. The case at bar differs from all of these. The statements in the affidavit are made positively, but at the end, after stating directly that the owner of the land in question is unknown, there is the further statement "all of which I verily believe to be true." It will be seen that whereas, in the cases cited, the affiant did not make any positive statements of fact, but merely stated that he believed, or was informed and believed that certain facts existed, in this case the statements are made positively and directly, and there is merely an additional statement that affiant believes them to be true. Does this further statement qualify or detract from what goes before? In Webster v. Daniel, 47 Ark. 131, 139, 14 S.W. 550, the affidavit stated "that said Peter Webster has left the county of his residence to avoid the service of a summons as shown by the return of a constable to the writ of summons issued herein." The court held that this was not an affidavit as to what the return showed, nor to belief based on information derived from the return, but was positive, and referred to the return as evidence only. In Re Keller, 36 F. 681, 685, a complaint in extradition proceedings stated an offense positively and directly. A statement was added to the effect that the complainant verily believed the facts stated to be true. The court said: "If it is conceded that this court can construe this pleading and reject it, still I think it is not faulty. It is a statement of a fact which the deponent, in testifying to, verily believes to be true. A man swears to what he believes to be true; and when he states a fact under oath, he says he verily believes it to be true. I do not think it is faulty on that account. I think this affidavit is sufficient." In Pratt v. Stevens, 94 N.Y. 387, the court said: "The addition of the words 'to deponent's best knowledge, information and belief,' does not modify or detract from the words previously employed. The general rule is that an oath taken before a competent officer merely verifies truth of the facts stated, according to the best knowledge, information and belief of the affiant. The positive affirmation of the fact sworn to in an affidavit is in most cases supposed and understood to be according to the best knowledge, information and belief of the witness." The true criterion would seem to lie in the willingness of the witness to make a positive statement. If his information and knowledge are such that he will make a positive statement of the fact in question upon oath, his evidence is to be received, though the weight to be given it might be small by reason of the nature and extent of the information and knowledge from which he testifies. On the other hand, if he has a belief or opinion, but is not so completely satisfied of the fact that he will testify to it directly, but merely states his belief, then the bare statement of what he believes, but will not state positively upon his oath, is not to be received, unless the case is one where an affidavit as to his belief only is required. In the case at bar, there is a direct and positive statement that the owner is unknown. The further statement that affiant believes it to be true does not detract therefrom. He not only believes it, he is willing to testify to it positively. This is much more than a mere statement of his belief. But construing the affidavit with counsel for appellee, and giving to the words with which it closes all the effect claimed for them, we agree to the conclusion reached at the former hearing, and think it sufficient. Where a showing by affidavit is required as to facts which are necessarily matters of information and belief, an affidavit on information and belief ought to suffice. The statute should receive a construction in accordance with common sense. It was not intended to require perjury, and, as it requires affidavit to matters involving legal opinion and conclusions of law and fact, it must contemplate that such affidavit will be made upon the only basis on which such opinions and conclusions can be reached. As ALBERT, C. said in the former opinion, with reference to the required showing that service can not be made in the state: "In the very nature of things, upon this point at least, the affiant, whatever the wording of the affidavit, can never have positive knowledge. * * * To expressly state that which, in the absence of such statement, would be necessarily implied, affects only the form and not the substance of the affidavit." This is no less true of the statement that the owner of the land in controversy is not known. In a trial where numerous witnesses are successively examined the several facts and circumstances may be made to appear by competent proof, and the trier of fact may draw the proper inference therefrom. But where one man is to make affidavit to the conclusion, he must in fact state the belief which the information in his possession gives rise to, whether he expressly says so or not; otherwise the required affidavit could never be made. In Colton v. Rupert, 60 Mich. 318, 326, 27 N.W. 520, the court say: "In such case an affidavit upon information and belief is all that could reasonably be required. To require that such proof should be established by such evidence as would preclude all reasonable doubt, or of such character and weight as would preclude a possibility of error, would deprive this provision of the statute, in a large majority of cases, of any efficacy, and result in a failure of the remedy designed to be afforded by the law. The law itself is based upon the necessity of the case, in order to enable parties to reach and deal with property within the jurisdiction of the court." A similar observation is made in Snell v. Meservy, 91 Iowa 322, 59 N.W. 32, and the great weight of authority sustains this view. See, also, Trew v. Gaskill, 10 Ind. 265; Bonsell v. Bonsell, 41 Ind. 476.

We do not think the cases of Clarke v. Nebraska Nat. Bank, 57 Neb. 314, 77 N.W. 805, and Mowry v. Sanborn, 65 N.Y. 581, conflict in any way with the foregoing proposition. In Clarke v. Nebraska Nat. Bank the statute required proof of certain facts to the satisfaction of the judge. These facts were capable of positive proof, directly or by circumstances. There was no requirement that the proof be by affidavit...