Hammerslaugh v. . Farrior

Ashe, J. (after stating the facts). The question presented for our determination by the appeal is, whether the complaint was verified in compliance with the statutory requirements. It was verified by the attorney of the plaintiff. By §257 of The Code, it is provided: “Every pleading in a Court of record, must be subscribed by the party, or his attorney; and when any pleading is verified, every subsequent pleading, except a demurrer, must be verified also;” and by §258, it is declared: “The verification must be to the effect, that the same is true to the knowledge of the person making it, except as to those matters stated on information and belief, and as to those matters, he believes it to be true, and must be by affidavit of the party, or if there be several parties united in interest, and pleading together, by one at least, of such parties, acquainted with the facts, if such party be within the county where the attorney resides, and capable of making the affidavit-The affi lavit may also be made by the agent or attorney, if the action or defence be founded upon a writteu instrument for the *137 payment of money only, and such instrument be in the possession of the agent or attorney, or if all the material allegations be within the personal knowledge of the agent or attorney.” The act contemplates only two cases where the affidavit may be made by the attorney. The one, when the action is founded upon a written instrument for the payment of money only, and such instrument is in the possession of the attorney; and the other, when the material allegations are within the personal knowledge of the attorney. The one or the other of these facts are essential to the validity of a verification by an attorney. But. in this case, the attorney does not pretend to have any personal knowledge of the allegations of the complaint; and the action is not founded upon a written instrument for the payment of money, but is in the nature of assumpsit for goods sold and delivered. Cowles v. Hardin, 79 N. C., 577. The verification is not in compliance with any provisions of the statute, and is, therefore, insufficient, and the complaint must be regarded as unverified, and it was error in the Court to refuse the defendant the right he claimed to file an unverified answer, and to give a judgment final against him for want of answer; for a judgment by default final can only be rendered when the complaint is verified. Witt v. Long, 93 N. C., 388. There is error. The judgment of the Superior Court is reversed, and a venire de novo awarded. Error. Reversed.