Miller v. . Curl

"Walker, J., after stating tbe case: Tbe statute requires that tbe verification shall state, in substance, that tbe pleading itself, in its entirety, is true to tbe knowledge of tbe person making it, except as to matters therein stated on information and belief, and as to those matters, be believes it to be true. This is so where a party to tbe proceeding makes tbe verification, but it may also be made by an agent or attorney, if tbe action or defense be founded upon a written instrument for tbe payment of money only, which is in tbe possession of tbe agent or attorney, or if all tbe material allegations of tbe pleading be within bis personal knowledge; but when tbe pleading is verified by an agent or attorney, be must set forth in tbe affidavit bis knowledge or tbe grounds of bis belief on tbe subject, and tbe reason why it is not made by tbe party. Revisal, secs. 488, 489, and 490. Tbe object of tbe statute is to give tbe pleader a convenient substitute for tbe old bill of discovery in equity, and to eliminate all issues of fact that tbe parties are not willing to raise under tbe sanctity of an oath. Griffin v. Light Co., 111 N. C., 434; Phifer v. Insurance Co., infra. It is also reasonably necessary for tbe protection of tbe other party in cer *4 tain cases. THis provision of tbe statute should, therefore, be at least substantially complied with. The verification in this case is defective in its very first averment. Phifer v. Insurance Co., 123 N. C., 410; Carroll v. McMillan, 133 N. C., 140; Payne v. Boyd, 125 N. C., 499. It would be useless to discuss this part of the verification, as the cases which we have cited present the identical question here raised, and are conclusive in their reasoning, to which we simply refer. There is another defect noticeable. The attorney does not state why the verification was not made by one of the plaintiffs, and there is nothing stated from which we can fairly infer the reason for this failure by them to verify their own pleading. Revisal, sec. 490; Banks v. Manufacturing Co., 108 N. C., 282. The judgment, there fore, should not have been rendered. Hammerslaugh v. Farrior, 95 N. C., 135. The judgment, however, was not void, but merely irregular. Cowan v. Cunningham, 146 N. C., 453. It was held in that case: “If it should be conceded in such case that a judgment by default final is not allowable on an unverified complaint, the defect only amounts to an irregularity, and such judgments are not set aside as a matter of right in the party affected, but in the sound legal discretion of the court. It is always required that a party claiming to be injured should show that some substantial right has been prejudiced, and he must proceed with proper diligence and within a reasonable time,” citing Becton v. Dunn, 137 N. C., 562. There is another important consideration. .Where a party moves to set aside a judgment for irregularity or excusable neglect, he should make it appear that he has a meritorious defense. This must be taken as finally settled. Turner v. Machine Co., 133 N. C., 381; Currie v. Mining Co., 157 N. C., 209; Scott v. Life Association, 137 N. C., 516; Minton v. Hughes, 158 N. C., 587; Norton v. McLaurin, 125 N. C., 185; Leduc v. Slocomb, 124 N. C., 347. The reason for this practice is clearly stated by Justice Ruffin in Mauney v. Gidney, 88 N. C., 200: “In the first place, and contrary to all the authorities, the defendants omit to set out in their application any defense whatsoever which they then had, or which it is conceived they could now make to the action; and for aught the Court can tell, looking *5 to tbeir allegations, it may be called upon, after setting aside tbe judgment, to render just such, another, between the samé parties. To avoid engaging in so vain a thing, the courts have uniformly required in all such applications that the parties should, at least, set forth such a case as prima facie amounted to a valid defense,” citing English v. English, 87 N. C., 497; Jarman v. Saunders, 64 N. C., 367. And also by Chief Justice Shepherd, in Everett v. Reynolds, 114 N. C., 366: “Generally a judgment will be set aside only when the irregularity has not been waived or cured, and has been or may be such as has worked, or may yet work, serious injury or prejudice to the party complaining, interested in it, or when the judgment is void,” citing Williamson v. Hartman, 92 N. C., 236; Peoples v. Norwood, 94 N. C., 167; 1 Freeman on Judgments, sec. 102. The subject is fully reviewed, the same reason substantially given and the same conclusion reached in Scott v. Life Association, 137 N. C., 516; and in Turner v. Machine Co., 133 N. C., 381, we held that merits must be shown upon such a motion, citing from other jurisdictions, Insurance Co. v. Rodecker, 47 Iowa, 162; Edwards v. Jamesville, 14 Wis., 26. In the recent case of Currie v. Mining Co., 157 N. C., 209, Justice Allen says: “An irregular judgment is one rendered contrary to the courge and practice of the courts, and may be set aside within a reasonable time, and upon showing a meritorious defense.” In this case, the defendant has received full credit for the attorney’s fee, which he alleges was wrongfully charged against him and included in the judgment in the legally questionable, but seemingly just, exercise of the court’s discretion, as the inclusion of that amount was merely erroneous, and the judgment, in that respect, could be revised only by appeal. But the ruling was in defendant’s favor, the plaintiff not complaining of it. It is, therefore, not before us for review. Our conclusion is that there was no error in the refusal of the defendant’s motion. No error.