Cahoon v. . Everton

Clarkson, J. The defendant takes the position that the complaint was not verified according to law, as the plaintiff, when he swore to the complaint, did not subscribe his name to the oath. We do not think this necessary, under the statute, although the better practice is to have it subscribed. C. S., 529, is as follows: “The verification must be in substance 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 are several parties united in interest and pleading together, by one at least of such parties acquainted with the facts, if the party is in the county where the attorney resides, and is capable of making the affidavit.” Currie v. Mining Co., 157 N. C., 218. We commend what Merrimon, J., said, in Alford v. McCormac, 90 N. C., 153: “While the law is as we have expounded it, the general prae- *372 tice in this State bas been to require the affiants to subscribe their names to the affidavits made by them. This is a wholesome practice, and we commend it. It ought to be observed by all officers who take affidavits for any purpose, not because it is essential, but because it serves to supply strong additional evidence that the affiant swore what is set down in writing, in case it should at any time be brought in question. The certificate of the officer taking it is official, but not conclusive, evidence of what appears to have been sworn. As we have said, it is sometimes required by statute that affidavits shall be subscribed by the parties making them. Of course, in such cases they would be incomplete and inoperative without the signature of the affiant subscribed by him.” The exceptions raise some interesting questions under our practice. It will be seen from the record that the summons is dated 18 July, 1923, returnable 1 August, 1923. It and the complaint were served on defendant 27 July, 1923. Public Laws, Extra Session 1921, ch. 92, sec. 1, subsec. 3, is as follows : “The answer or demurrer shall be filed within twenty days after the return day, or after service of the complaint upon each of the defendants, or within twenty days after the final determination of a motion to remove as a matter of right. If the time is extended for filing complaint, then the defendant shall have twenty days after the final day fixed for such extension in which to file the answer or demurrer, or after service of the complaint upon each of the defendants (in which latter case the clerk shall not extend the time for filing answer beyond twenty days after such service) : Provided, in cases where the complaint is not served, for good cause shown, the clerk may extend the time to a day certain.” The twenty days for defendant to answer expired before 20 August, 1923. The answer was filed on 20 August, 1923. The plaintiff did not move for judgment by default before the clerk, as he had a right to do. Lerch v. McKinne, 186 N. C., 244. The case was transmitted to the Superior Court, at term, for trial on the issues. Subsection 13, Laws 1921, supra, is as follows : “Pleadings shall be made up and issues joined before the clerk. After pleadings have been so made up and issues joined, the clerk shall forthwith transmit the original papers in the cause to the court at term for trial upon the issues, when the case shall be proceeded with according to the course and practice of the court, and on appeal with the same procedure as is now in force.” When the case reached the Superior Court, at term, it was treated as rightfully there and the answer filed in time. The court recognized the answer as properly filed in time, and made an order to make sections 1 and 2 of the answer more definite and certain. *373 In McNair v. Yarboro, 186 N. C., 113, it is said: “And we consider it well to state further that, while this chapter 92, section 3, provides that ‘where a copy of the complaint has been served upon each of the defendants, the clerk shall not extend the time for filing answer beyond twenty days after such service.’ This restriction applies to the clerk and does not and .is not intended to impair the broad powers conferred on the judge in this respect by section 536 of Consolidated Statutes, to the effect that where the cause is properly before him ‘he may, in his discretion and upon such terms as may be just, allow an answer or reply to be made or other act done after the time, or by an order to enlarge the time.’ ” The plaintiff, having made no motion before the clerk for judgment by default, on account of the answer not being filed in time, and allowed the case to be transmitted for trial on the issues at term, waived his right; and the fact that the answer was not filed before the clerk in time will be considered waived, under the facts and circumstances of this case. The court below treated it as filed in time, and made the order as set out in the record. The next question arises from the exception and assignment of error, as follows: “Motion by defendant for continuance, on the ground that the action has not been at issue for but seven days.” The answer was filed on the 20th; that was seven days before the court convened. C. S., 557, amended by chapter 124, Public Laws 1923, is as follows: “Every issue of fact joined on the -pleadings, and inquiry of damages, or ordered to be tried by a jury, must be tried at the term of the court next ensuing- the joinder of issue or order for inquiry, if the issue was, joined or order made more than ten days before such term, but if not, they may be tried at the second term after the joinder or order.” We think, as a-matter of right, the defendant was entitled, under the statute, to a continuance. C. S., 535, is as follows: “In the construction of pleadings for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties.” Under our liberal practice, we think the answer was sufficient to raise an issue. Chesson v. Lynch, 186 N. C., 625. For the reasons given, there must be a New trial.