Simpson v. Wicker

• Decision Date: 09 June 1904
• Parties: SIMPSON v. WICKER.
• Court: Georgia Supreme Court

47 S.E. 965

120 Ga. 418

SIMPSON v. WICKER.

Supreme Court of Georgia

June 9, 1904

Syllabus by the Court.

1. Under the act approved December 20, 1899 (Acts 1899, p. 79) an affidavit in forma pauperis before a foreign notary, with his seal attached, is receivable in the courts of this state and sufficient to prevent a dismissal of a bill of exceptions for failure to pay costs.

2. The refusal to dismiss a case because of the failure of the plaintiff to attach a bill of particulars does not afford ground for the grant of a new trial. Civ. Code 1895, § § 4963, 5642.

3. The evidence was conflicting. There was testimony that at the time the services were rendered the defendant was a resident of this state, and shortly afterwards removed therefrom, so that the claim was not barred by the statute. Civ. Code 1895 § 3783.

Error from Superior Court, Gordon County; A. W. Fite, Judge.

Action by R. H. Wicker against J. H. Simpson. Judgment for plaintiff, and defendant brings error. Affirmed.

C. E. Carpenter and Cantrell & Ramsaur, for plaintiff in error.

H. F. Sharp and Starr & Erwin, for defendant in error.

LAMAR J.

1. Under the requirements of Civ. Code 1895, § 5614, the clerk of this court has raised the question as to whether an affidavit in forma pauperis made in a foreign state before a notary public is sufficiently authenticated by that officer's seal, where there is nothing further to show that he has statutory authority to administer oaths. The matter is of practical importance, inasmuch as it involves the admissibility of such affidavits on applications for injunction and in other legal proceedings. Nor is it free from difficulty, for there is great conflict in the decisions as to whether a notary public has the inherent power to administer an oath, or to attest affidavits, in any matter not connected with the protest of commercial paper. The question has never been directly and authoritatively passed upon in this state. In Charles v. Foster, 56 Ga. 612, it was decided that there was no presumption that he had any authority to attest a claim affidavit and approve a claim bond; this being out of the sphere of commerce, and involving the power of a magistrate or justice of the peace, his seal was no proof that he had such jurisdiction. In Brunswick Hardware Co. v. Bingham, 107 Ga. 270, 33 S.E. 56, "there was no authentication, other than his own signature, that the person attesting the affidavit was a notary," it appearing both from the published opinion and the original record that no seal was attached. Outside of Georgia the decisions are directly in conflict on the subject. The courts of Alabama, Illinois, Michigan, Colorado, and Indiana hold that affidavits before a foreign notary are inadmissible when authenticated solely by his seal of office. Some of these decisions are based, at least in part, on the language of the statute defining the terms upon which foreign affidavits may be received in legal proceedings. In England, Maryland, District of Columbia, New York, and Minnesota the courts receive such affidavits when authenticated by the notary's seal. The Supreme Court of Minnesota, in Wood v. St. Paul, etc., Co. (Minn.) 44 N.W. 308, 7 L.R.A. 149, delivered a vigorous opinion to the effect that such affidavits were admissible when attested by the seal, and that, whether the power of notaries to administer oaths and attest affidavits was of statutory or customary origin, it was universal, and that, for a time beyond living memory, affidavits made before foreign notaries, when attested under their seals, had been received in the courts of England. Walrond v. Van Moses, 8 Mod. *323, was decided in 1722, before our adopting statute. There, on an application to change bail, the court held that "a plaintiff who was in Holland might make an affidavit there and get it attested by a public notary, and should be admitted in evidence to hold the defendant to special bail here." In Tucker v. Ladd, 4 Cow. 47, an affidavit taken before a notary in New Hampshire was allowed, over objections, to be read in a hearing in New York. 21 Am. & Eng. Enc. L. 565. At one time there appears to have been doubt as to the power of notaries to attest affidavits in this state. It was removed by the act of 1863. Pol. Code 1895, § 503 (4). This statute, however, was probably in part declaratory of a power already recognized. Prior to that date no act had been passed defining their duties, or authorizing notaries to administer any sort of an oath. When they were elected by the General Assembly (Acts 1814, p. 78), or by the courts (Cobb, Dig. p. 205), nothing was said as to their powers or duties. They were referred to as officers whose functions were well known, among which was the power to administer oaths. For the fee bill of 1792 (Cobb, Dig. p. 352) allows them to charge "for every protest and oath included, $2.00,"" and "for administering an oath in any other case, .25."

From the act of 1792, therefore, it seems evident that the Legislature assumed that notaries had the power to administer oaths by virtue of their office. It was a power not then granted, but recognized as inherent in notaries the world over. That such was the practice appears from Solomon v Lacey, Dudley, 82, where "the bare certificate of a notary public of New...