Robinson v. Gregg

• Decision Date: 18 August 1893
• Citation: 57 F. 186
• Parties: ROBINSON v. GREGG.
• Court: U.S. Court of Appeals — Fourth Circuit

57 F. 186

ROBINSON v. GREGG.

United States Circuit Court, D. South Carolina.

August 18, 1893

Johnsons & Hanckel, for the motion.

Abney &amp Thomas, opposed.

SIMONTON District Judge.

This case comes up upon a motion to take judgment by default for want of an answer. The summons and complaint were served upon the defendant 17th May, 1893. The time for answering expired on the rules day in July, (the 3d.) An answer was filed and served on the plaintiff's attorneys 29th June 1893. The complaint contained several paragraphs. In one or two of these the facts were stated as on information and belief. In the other paragraphs the statement was made without qualification. The complaint had a verification, in the following words:

'W S. O'B. Robinson, receiver and plaintiff, above named, being duly sworn, says that the foregoing complaint is true, of his own knowledge, except as to those matters stated on information and belief, and as to these he believes it to be true. Sworn to and subscribed before me this 16th March, A. D. 1893.

A. J. Reddick,

'Clerk of the Circuit Court of the United States for the Eastern District of North Carolina, in the Fourth Circuit.

'By Wm. H. Shaw, Deputy Clerk.'

The seal of the court is attached. The answer is a general denial, and is not verified. Under the Code of Civil Procedure in South Carolina, (section 177,) when any pleading is verified, every subsequent pleading, except a demurrer, must be verified also. The plaintiff bases his motion on this section. The defendant insists that no verification to the answer can be required: (1) Because the verification to the complaint is not in the form required by the law and practice in South Carolina; (2) because the jurat is not properly attested; (3) because, if a verification was originally needed, it has been waived by the plaintiff.

1. According to the practice in the state courts of South Carolina, (which practice, in civil cases at law, this court must follow,) when the verification of a pleading states 'that the facts set out in the pleading are true, except as to such facts as are stated on information and belief, and that as to these he believes them to be true,' it must be made to appear what facts are stated as of personal knowledge, and what facts are stated on information and belief. Smalls v. Wilder, 6 S. C. 402; Hecht v Friesleben, 28 S.C. 181, 5 S.E. 475; Burmester v. Moseley, 33 S.C. 254, 11 S.E. 786. But this need not be shown in the verification. The whole complaint and the verification must be taken together, and when the body of the complaint shows distinctly what allegations are on information and belief, and...