Veal v. Perkerson

Montgomery, Judge. 1. Upon the hearing of this case before the Supreme Court, it was insisted by counsel for plaintiff in error that the agreement entered into between the counsel, and which is set forth in the statement of facts by the Reporter, was not intended to admit, and does not by its terms admit, that the claim affidavit was, in truth, sworn to before the magistrate. The counsel is, perhaps, correct in his interpretation of the language used in the agreement. But if not admitted, then it [95] was one of the issues submitted by the consent order to the Judge, and he has found the issue in favor of the claimant, this finding is the verdict of the tribunal selected by the parties to try the case, and is supported by the answer of the sheriff, that, to the best of his knowledge and belief, it was so sworn to, and this answer is not contradicted or excepted to. We think, therefore, that the finding of the Judge is conclusive as to the issue of fact raised. 2. Was he right in permitting the magistrate to sign the jurat, nune pro tuno ? In other words, is the jurat amendable so as to make it speak the truth? Different forms are required by the rules of the different English Courts to be complied with in. the jurats to affidavits intended to be used before those Courts: 1 Tidd’s Pr., 495. In the common pleas, if the month be omitted in the jurat of an affidavit of the delivery of a declaration against a prisoner in custody, it is defective and cannot be amended: Wood et al. vs. Stephens, a prisoner, 3 Moore, 236. “ But, though the omission of the form directed to be inserted in the jurat of an affidavit, may be an objection to its being received in the Court, whose rules have not been complied with, yet, still, it seems that perjury can be assigned upon it:” 1 Tidd, 496. I know of no rule of Court or law in Georgia prescribing any special form of jurat to an affidavit. The jurat is no part of the affidavit proper. Where a law requires a copy of an affidavit to be served upon the adverse party, it is not necessary to serve a copy of the jurat: Livingston vs. Chatham, 2 Johns., 479; unless, without it, facts stated may be unintelligible: Union Furnace Company vs. Shepherd, 2 Hill, (N. Y.,) 413. And even then the magistrate’s name may be omitted: Chase vs. Edwards & Bull, 2 Wend., 283. If, then, the jurat is no part of the affidavit proper, why should it not be amendable? It is no part of the oath — simply an officer’s entry. True, Judge Lumpkin, in Birdsong & Sledge vs. McLaren, 8 Georgia, 521, speaking for himself, thought an attachment affidavit wanting the magistrate’s signature was fatally defective. Two observations may' be made on that case: 1st. Though the point was in the case, [96] the other two Judges declined to put their judgment upon this ground, and refrained from expressing any opinion upon it. 2d. At that time, plaintiffs in attachment were held to a very strict compliance with the attachment laws, and almost any irregularity was held fatally defective. The weight of authority in the State is certainly against the opinion there expressed by Judge Lumpkin. Judge Alexander held differently in that case, and Judge Lumpkin's associates declined to overrule him on that ground. In the' present case, Judge Hopkins, whose legal ability is unquestioned, holds with Judge Alexander. I cannot but think Judge Lumpkin failed to bring to the consideration of the point his usual .powers of discrimination, and confounded the certificate authenticating the affidavit with the oath itself. The case relied on by him in 3 Caine's New York Reports is directly contrary to The People ex rel. Churchwell et al. vs. Rensselaer, 6 Wendell's New York Reports, 543. But clerks of the Superior Courts have authority to administer oaths and take.affidavits in all cases permitted by law, etc.: Code, see. 257. The mistake or misprision of a clerk or other ministerial officer shall, in no case, work to the injury of a party where, by an amendment, justice may be promoted: Code, 3456. A clerk of the Superior Court then had the power to take this affidavit; had he done so, the jurat might have been amended under the section last quoted. Hoes the fact that the affiant swore before a Justice put him in a worse position than he would have been in had he taken the oath before a clerk ? We think the amendment was properly allowed to be made nune pro tuno. That being so, the amendment relates back and makes the affidavit perfect ah initio, and the rule should not have been made absolute for this alleged defect. 3. The amendment of the bond was a matter entirely between the sheriff and the obligors; they consenting, the amendment was properly allowed. The sheriff’s duty was to furnish the proper bond. If he did so, in good faith, before any possible harm could coiné to plaintiff, the latter had no cause of complaint: Rogers vs. May, 25 Georgia, 463; Colley vs. Mor [97] gan, 5 Ib., 178. Neither on this account, then, should the rule be made absolute against the sheriff. Judgment affirmed.