Flint, Chamberlain & Graham v. McCarty & Brown

Opinion by Watts, J. § 1018. Trial of right of property; affidavit for. This was a suit for the trial of the right of property, in which McCarty & Brown were the claimants. The claim affidavit was signed “McCarty & Brown,” and a motion to quash the affidavit because it was not signed and sworn to by any particular person was overruled in the trial court. Held, that the affidavit was insufficient, and should have been quashed. The proceeding to try the right of property is an extraordinary power conferred upon the courts by statute. The affidavit is the starting point of the proceeding — the active principle that brings into action the jurisdiction of the court. It is the initiatory step, and is essential to the exercise of the special jurisdiction conferred by the statute. When, therefore, no legal and sufficient affidavit is made to authorize the proceedings, it should be quashed upon the motion of the other party. An affidavit is a statement or declaration of-some particular person, reduced to writing, and sworn or affirmed to before some officer who has authority to administer an oath, and it must in itself show that it is the individual oath of the party swearing thereto. [Wade v. Roberts, 53 Ga. 26.] The affidavit in this case does not purport to be the sworn declaration of any individual, but the declaration of a firm. McCarty & Brown appear before the officer, and the affidavit is signed McCarty & Brown. We can see no valid reason why both partners might not have appeared before the officer, and each made his individual declaration under oath, provided this is shown in the affidavit. Either of them could have made the oath for the firm, as this would be the individual oath of the partner, making the same, however, for the benefit of the firm; but here it [571] is not McCarty, nor is it Brown, that is shown to have made the oath; it might have been the one or the other that made it, and which, if either, the affidavit does not disclose. February 23, 1881. Reversed and remanded.