Hickman v. Painter

Moore, Judge, delivered the opinion of the Court. This cause is before us upon an appeal allowed the defendants from the decree of August 29, 1871, rendered by the circuit court of Fayette county. The first ground of error, presented by the appellants, is, that the circuit court did not sustain the demurrer to the bill, upon the ground that it was not sworn to at the time the demurrer was filed, and that when it was sworn to, afterwards, it was not done as required by the Code, chapter 125, §37, p. 604. That section, declares: “ If the plaintiff desire the defendant to answer the bill on oath, he must verify his bill by oath; and if the bill be so verified the defendant must in like manner verify his answer. But if the bill be not verified, the defendant need not verify his answer, and if he does so, it shall not be entitled to any more weight in the cause than if it had not been verified. In case the defendant verify his answer, alleging new matter constituting a claim for affirmative relief, the plaintiff must verify his reply thereto.” The 42d section of said chapter, “ The verification of any pleading, and the certificate thereof, shall be in form or effect as follows : State of West Yirgifia, - Couety, to-wit : A-B-, plaintiff, (or defendant, as the case may be), named in the foregoing bill, (or answer, replication, or plea, as the case may be), being duly sworn, says that the facts and allegations therein contained, so far as they are stated on his own knowledge, are true, and that so far as they are stated upon information, he believes them to be true. A-B-, plaintiff, (or defendant). Taken, sworn to, and subscribed before me, this — day of-. C-33-, clerk, (or other officer swearing him). If the party required to verify a pleading, be an administrator or other fiduciary, it shall be sufficient if he swears that he believes the plea or other pleading to be true.” — 394 — Upon an appeal to this court in the matter of petition 'of Peter Clark &c. 7 West Va. 467, in the opinion of the Court, at page 472, Judge Pauli said : “ It is said however that the certificate appended to the petition, in the following words: ‘subscribed and sworn to before me,” &c., is not sufficient. In the - Code of Virginia no form of certificate, for the verification of pleadings, such as appears in the present Code, page 605, was prescribed. These words certainly refer to the petition, and must be held as embracing and verifying the contents of the petition. Formerly where no form of certificate was prescribed, it was a very common and constant mode of certifying an affidavit to the contents of a paper, or of a pleading, and the very absence of all controversy and decision in our courts upon the question may be regarded as some evidence in favor of the sufficiency of such a certificate.” In the case of Hunter et al. v. Robinson adm’r, 5 West Va. 272, which was a bill brought, since the adoption of our Code, to enforce payment of lost bonds. The bill was not sworn to, but was accompanied by an affidavit of the loss of the bonds, made by one' McChesney, from whose custody the bonds seem to have been lost, and was made a part of the bill, it was held by this Court, Judge Berkshire delivering the opinion, that the McChesney affidavit, “ was sufficient to satisfy the requirement of the law in such cases,” and that the demurrer was therefore properly overruled. In Thornton v. Stewart, 7 Leigh 128, which was also a bill for relief upon a lost bond, the bill prayed a discovery from the defendants of the execution of the bond, and of the transfer thereof to Stewart, and such relief as he should be found entitled to. This bill was not verified by affidavit, nor was any affidavit filed with the bill of the fact of the bond being lost; the bill was answered by Thornton and Scruggs, and there was a general replication to Thornton’s answer, but no replication to the answer of Scruggs. The cause was removed — 395 — from tbe county court to the superior court of chancery, “ and there, many years after the commencement of the suit, the plaintiff made and filed an affidavit, that the bond, at the time of the exhibition of the bill and still was lost, and that he had no hope of ever finding it.” Tucker, J., in delivering the opinion of the court, said: “ For though it was not filed with the bill, it is one of those defects, which I think may well be supplied in the progress of the cause, where there has been no demurrer to the bill for want of it.” In the case before us, the bill is filed to set up a lost receipt, which the defendant Painter had given, as constable, to the plaintiff for certain claims, put in the constable’s hands for collection. It is well established that “ equity has jurisdiction whenever a lost instrument is to be set up, notwithstanding that the courts of law now exercise jurisdiction in the same cases:” Shields v. Commonwealth, 4 Rand. 541; and the facts of the case may be ascertained by reference to a commissioner, or by issues to be tried by a jury, according to the common course of the court: Idem 546, opinion by Green, J. The court relieves against the accident of the loss, by setting up the evidence of the debt.: Harrison v. Field, 2 Wash. 136; and having taken jurisdiction for one purpose, it. will adjudicate the full merit of the case. Our Code, chapter 130, §14, p. 617, permits such proceeding upon affidavit of such loss, but does not prescribe any form for an affidavit for that purpose. In the case of Cleveland v. Stanley, 13 Ind. 549, 550, Worden, Judge, delivering the opinion of the court said: ■“ It is also objected, that the affidavit filed was not sworn to; but it purports to be an affidavit, and was so treated in the court below, although it does not appear to have the jurat of the clerk. It may have been sworn to in open court; if so, it needed no jurat as evidence, that it had been duly' sworn to *by the affiant.” Now, under the statute, it was not obligatory on the plaintiff to make oath to his bill, as mere pleading, unless-he wanted — 396 — to compel the defendant to answer under oath; but it ' was necessary to make affidavit of the loss of the receipt, he wished to set up. I am of opinion, that as the plaintiff swore to the bill in open court, and as the bill alleges the loss of the receipt, the oath thus taken or made, is sufficient to answer the requirement of the statute as to a lost instrument. ITpon the authorities cited, and also because the statute prescribing the form for the verification of pleadings does not make it obligatory to follow that precise form, but authorizes that it should be to the same “ effect,” I am further of opinion, that when the pleading is sworn to in open court, it is not necessary that there should be the clerk’s jurat of the precise veri-cation made, but that the appellate court will presume the verification to have been in “ effect, ” that prescribed by the statute. In this case, the clerk having appended to the bill his certificate that it was “ sworn to in open court, by the plaintiff,” is in my opinion sufficient. As to the objection that the plaintiff’s remedy was complete at law, that has already been answered upon the authorities cited. The demurrer was properly overruled. The second objection, viz:' that “it was error to refer the case to a special commissioner, as Brazie was: ” If that had been an error, it could not now be objected to, as it should have been taken advantage of in the court below. But the record shows the appointment of the commissioner, Brazie, to take the account, to have been regular and in accord with the statute. The order refers the account to “ H. W. Brazie, a master commissioner of this court.” There is nothing in the record to show he was not one of the commissioners of the court; and the appellate court will consider him in this case, regularly appointed and qualified as such commissioner; and as such commissioner he was authorized to take not only the account but also the depositions, that were excepted to. The court did not err in disregarding the plea of the — 397 — statute of limitations, because the record shows that the suit was commenced in proper time. The answer not alleging new matter constituting a claim for affirmative relief, and not praying for affirmative relief, as an answer of that kind should do, but having merely alleged payment and set-off to the plaintiff’s demand, there is no necessity for .any replication other than that filed by the plaintiff; and the defendant is not therefore, under sections 35 and 36, chapter 125 of the Code, relieved from the necessity of proving his counter claims, and especially as the answer is in no part taken for confessed. There are other points raised, in argument, but not material for the adjudication of this case, and will not be considered. From all I can see in this record, the only point that is at all doubtful, is whether the facts of the case justify the decree. The court, as it had a fight in its wise discretion to do, referred the cause to one of its commissioners to ascertain as near as possible the real facts of the case, in order to enable it to determine fully and truly the merits, that it might render a judgment and decree according to the principles of equity on the matters in controversy. The appellant, Painter, as appears from the record, has manifested a reluctant disposition to appear before the commissioner, and make known that which was within his own knowledge, and would have enabled the commissioner to have so stated an account, as to have given the court such light to have aided its conscience in decreeing according to the very right of the case; but he held back, until the court was forced to stretch forth its strong arm and direct an attachment against him, unless he did .appear before the commissioner as required; and even then he interposed frivolous objections and technicalities not consonant with his equitable duty, and not to be sanctioned in courts of equity. It may be, that the defendant has not been allowed all credits that he is justly entitled to; it may be, that the — 398 — plaintiff has not done equity to the appellant, Painter, but from the confused record and somewhat vague proof, I cannot say that the court has erred in giving the decree it has. Although it would have been more satis-; factory had the commissioner itemised his statement of account, showing what items were allowed and what rejected, and also had the decree more specifically stated what constituted the credit it allowed of $54.60. The appellate court will not reverse, a decree in such a case unless it is clearly wrong; and as the circuit court has evidently done no great wrong, if any, in this decree, and none is apparent, I am of opinion that the said decree be affirmed, with costs and damages according to law. , Decree Affirmed.