Valley Paper Company v. Smalley

• Decision Date: 01 November 1896
• Citation: 16 Del. 289,43 A. 176
• Court: Delaware Superior Court
• Parties: VALLEY PAPER COMPANY, a corporation of the State of Massachusetts v. WILLIAM F. SMALLEY

43 A. 176

16 Del. 289

VALLEY PAPER COMPANY, a corporation of the State of Massachusetts v. WILLIAM F. SMALLEY

Superior Court of Delaware, New Castle County

November 1, 1896

This was an action of assumpsit to recover the amount due on a promissory note; a copy of cause of action and affidavit of demand was filed; an affidavit of defence was filed to which the notary public, George W. Cavender, had omitted to affix his seal.

W. S Hilles, for the defendant, asked leave to amend the affidavit, by having the notary public affix the seal thereto. He filed an affidavit of defendant, setting forth the facts contained in the original affidavit of defence and that the neglect of the notary public to affix his seal was unknown to him until after the time limited by the rules of the Court for filing such affidavits. He contended that the provision of our statute requires that the defendant should file an affidavit of defence, setting forth the nature of such defence, in order that judgment may not be given against him.

This provision of the law was not made to deprive the defendant of any defense that he might have had but solely to enable a plaintiff, who had a cause of action against the defendant against which the defendant had no defense, to recover judgment without waiting the time which would be necessary to plead the cause to issue and have it regularly tried. It was to further justice and not to impede justice.

The time of filing the affidavit of defense is not the subject of any statutory regulation, but is regulated merely by rule of Court, which can be changed and modified by the Court at any time. The Courts in this State have uniformly recognized the above principles as governing judgments asked for under defective affidavits of defense; Tallman vs Whittaker, 2 Houst. 72.

The affidavits filed in this case show conclusively that an affidavit has been administered by competent authority and under Section 11, Chap. 112, Rev. Code, it is to be presumed that the affidavit was properly administered. "When it appears that an oath, or affirmation, has been administered by competent authority, it shall be presumed to have been properly administered unless the contrary appear."

The Constitution of this State gives to the Superior Court the most ample power to direct amendments of impleadings and legal proceedings so that by error in any of them, the determination of causes according to their real merits shall not be hindered. Article 6, § 16. And Chapter 112 § 11 of the Revised Code, gives further authority to the Court. It has been universally held that such provisions as these provisions shall be most liberally construed in order to effect an investigation of the real merits of every case. Godwin vs. Collins, 1 Harring. 216; Townsend vs Townsend, 2 Harring. 277, 279. There can be no question that an affidavit comes under the head of pleadings or proceedings; Babcock vs. Kuntzsch, 85 Hun 33. And it has been laid down that affidavits of merits are usually amendable where the defect is not jurisdictional and especially where the jurat is defective through the negligence of the officer, it is freely allowed to be amended; Encyc. Pl. & Pr. 337, 654.

Babcock vs. Kuntzsch, 85 Hun 33; Pierson vs. Hendricks, 88 Ill. 34; Peterson vs. Fowler, 76 Mich. 258; Williams vs. Stevenson, 103 Ind. 243; Lederer vs. Chicago, 38 Wis. 244; Stout vs. Folger, 34 Iowa 71; Hallet vs. Railroad, 22 Iowa 259; Cusick's Appeal, 136 Pa. 459, 476; Stone vs. Miller, 60 Iowa 243; Tunis vs. Withrow, 10 Iowa 305; Kruse vs. Wilson, 79 Ill. 233; Dexter vs. Hoover, 2 Cowan 526; Cutler vs. Rathbone, 1 Hill 204; Wells vs. Booth, 35 Mich. 424; In re Newman, 75 Cal. 213; Burr vs. Seymour, 43 Minn. 401; Denn vs. Fen, 12 N. J. L. 321; Burkett vs. Bowen, 118 Ind. 379; Frink vs. Flanagan, 6 Ill. 35; Cook vs. Whipple, 55 N.Y. 150.

The proper proceeding is the filing of the amended affidavit, nunc pro tunc. See above cases, but especially, Williams vs. Stevenson, 103 Ind. 243; Lederer vs. Chicago, 38 Wis. 244; State vs. Davis, 73 Ind. 359.

Pennington, (Vandegrift associated with him in the brief.)

An affidavit is a statement or declaration reduced to writing and sworn or affirmed to before some officer who has authority to administer an oath. Bouvier, L. Dict., tit. Affidavit.

As to notary's authority to administer an oath see Rev. Stat., 800, Ch. 108 § 1, which is as follows: "The Chancellor, any judge, justice of the peace or notary public, shall have authority in any case in which an oath or affirmation is necessary or proper, to administer such oath or affirmation. Rev. Code, 280, § 2. An affidavit of defence is provided for in this State by statute. Rev. Code 789. Now since a notary has authority to administer an oath expressly given by statute, such is made a part of his official business. By Rev. Stat. we see that a notary "shall" use in the transaction of official business seals which shall be engraved in a certain prescribed manner. Rev. Code, 240, § 1.

Although there have been no decisions in Delaware directly bearing on this point the Courts of Alabama, whose statute is practically the same as ours, being as follows: "For the authentification of his official acts such notary public must provide a seal of office which must present by its impression his name, office, State and county for which he was appointed." Rev. Code of Ala. § 1106, have held that an affidavit should state the official capacity of the notary and be authenticated by his official seal; Bayonne Knife Co. vs. Umberhaus, 16 So. Rep. 175; Alabama Nat. Bank vs. Sash Co., 18 So. Rep. 74; Tunis vs. Withrow, 10 Iowa 305; Stephens vs. Williams, 46 Iowa 540; Miller vs. State, 122 Ind. 355.

"An affidavit must on its face appear to have been taken by the proper officer and the legal requisitions to have been complied with. The Court cannot stop to inquire into the competency of the officer or the place where it was taken." 1 Tidd, Prac. 180. State vs. Green, 15 N. J. L. 20; Hoy vs. Anderson, 58 N.W. 127. Where there is a defect in jurat of an affidavit on which a motion is made time will not be allowed for amendment except in cases of bail. 1 Tidd, Prac. 496; Anonymous, 2 Chitty 20. The law in all States which have statutes similar to that in Delaware seems to be uniform and requires a notary's seal to be attached to all his official acts, i. e., he must act through his seal and absence of such seal is fatal. Laws Neb. p. 597 § 5; 58 N.W. 127; Rev. Code Ala. § 1106; 18 So. Rep. 74; Tunis vs. Withrow, supra.

An oath is oral and does not require the authentication of a seal. An affidavit must be in writing, and if made before an officer must be authenticated by him so that the Court or body before whom it is used can know from the face of the paper itself without going beyond it that the person authenticating it is an officer.

Under our statute a Notary Public can only act by his official seal, and the taking of an affidavit of defence is done by him as one of his official acts.

The statute of this State says that he shall use...