Smith v. Ponath

• Decision Date: 07 April 1885
• Citation: 17 Mo.App. 262
• Parties: JAMES A. SMITH, Respondent, v. FRED. W. PONATH, Appellant.
• Court: Missouri Court of Appeals

17 Mo.App. 262

JAMES A. SMITH, Respondent,

v.FRED. W. PONATH, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 7, 1885.

APPEAL from the St. Louis circuit court, BARCLAY, J.

Affirmed.

VIRGIL M. HARRIS, for the appellant: Verification of pleadins cannot be made before the attorney in the cause.-- Wilhouke v. Halle, 37 Ga. 678; Sawyers v. Lathrop, 9 Ark. 67; Nash's Pl. & Pr. 99; Warner v. Warner, 11 Kan. 121; Taylor v. Hatch, 12 Johns. Rep. 340; Williard v. Judd, 15 Johns. Rep. 531; Stevens v. Miller, 46 Mo. Rep. 404; Floyd v. Rice, 28 Tex. 341; People v. Spalding, 2 Paige Ch. Rep. 326; Gilmore v. Hunstead, 4 How. Pr. 53; Den v. Geiger, 4 Halst. 225. The return of service of notice should have been verified by affidavit.-- McDermead v. Russell, 41 Ill. 489; McCall v. Cohen, 13 S. C. 198.

KLEIN & FISSE, for the respondent: The complaint was properly verified. In the absence of a statute, a notary, who is at the same time attorney in a cause, is not thereby disqualified to take an affidavit in the cause.-- Young v. Young, 18 Minn. 90.

LEWIS, P. J., delivered the opinion of the court.

The complaint in this case of unlawful detainer was sworn to by the plaintiff before one of his attorneys in the cause, who was a notary public. It is assigned for error, that an affidavit so taken and certified is contrary to public policy and void, wherefore the justice never acquired jurisdiction of the cause.

An examination of the numerous authorities cited for the appellant leads easily to the conclusion that, while the courts have in many cases declared that the administering of an oath to his client by an attorney, in a course of procedure, was improper, as an abuse of the relations existing between them, and that an affidavit so taken would not be heard, if objected to by the adverse party when offered, yet it has never been supposed that the objection could be entertained, when made for the first time on appeal or error; unless, possibly, in one of those rare instances where the making of an affidavit in the mode referred to is expressly prohibited by statute. There is no such statute in Missouri. Without it, such an affidavit is not a nullity. Its defect, if there be one, is at most an irregularity which may be waived, and which will be deemed so to be, if permitted, without objection, to perform its intended function.-- Gilmore v. Hempstead, 4 How. Pr. 153. It has been held also, that the rule of exclusion “applies only to affidavits made before an attorney in a suit pending, not to those preparatory to the commencement of one;” of which latter class is the affidavit in the present case.-- Vary v. Godfrey, 6 Cow. 587; Payne v. Flournoy, 29 Ark. 500. In Young v. Young (18 Minn. 90), it was held that an affidavit made by a plaintiff before his attorney, who was a notary public, was good against all objections on that score, because the statute conferred upon “ each notary public” power to administer “all oaths required or authorized by law to be administered in this state.” An analogy may be found in our Missouri statute (Rev. Stat. sect. 3327) which would lead to the same result. But it is not necessary for us...