Bohn v. Zeigler

Brannon, President: Suit in equity, with attachment, by Bohn Bros. & Co. against Jacob Zeigler, in which affidavits for attachment were quashed, and the bill dismissed, and plaintiffs appeal. In this case arises the question of the deficiency and the amendableness of the affidavit for attachment, while in the case of Miller v. Zeigler (at this term) 29 S. E. 981, the question of the same character related to the order of attachment. I refer to that case on the subject of amendment. In this case the affidavit was made before a notary in the State of Ohio, and as his certificate did not have the further certificate of a clerk or other officer of a court of record verifying the genuineness of the notary’s signature, and his authority to administer oaths, the affidavits would be bad for want of due authentication. Code, c. 130, s. 31; Lockhead v. Improvement Co., 40 W. Va., 553, (21 S. E. 1031). The seal of a notary out of the State does not, alone, verify and authenticate his act, except as regards bills of exchange, under s. 7, c. 51, Code, and deeds, under s. 3, c. 73. His signature, alone is enough as t'o depositions under c. 130, s. 33, Code. Proff. Not. § 166; 16 Am. & Eng. .Enc. Law, 757. And, as to affidavits, our statute requires certain further authentication. • When, however, the court expressed its opinion to sustain the motion to quash the affidavit and supplemental affidavit, the plaintiffs asked leave to attach-fo said affidavits a certificate of a clerk in Ohio, to cure the said omission, and to prove the authenticity of said notary’s certificate, but were refused. Ought the court to have allowed this amendment? I think so. Now, there is a difference between amending- an attachment affidavit in matters of substance and matters of mere formality; between amending an affidavit in the substantial- matter of the statement- of cause of action, grounds of attachment, and material facts to sustain such grounds, and amending the certificate of jurat, or the certificate authenticating it. The amendment in the former case touches the essential rights of the defendant, whereas amendment of form does not, unless we say he has a vested and indisputable right to have a merely clerical or formal [404] error or omission stand incurable. With every passing-year the courts cease more and more to stand quaking and appalled on discovering- errors and omissions of ignorance or inadvertence that do not touch the vitals of the controversy, and, taking up a courage which they did not know in times gone by, they allow amendments that operate to cure these slips and bring the courts to a decision of the real merits. Old and valuable and sensible is the maxim. l‘Ut res magis valeat quam fereat” (that the thing may rather have effect than perish). It arose in days when technicality was generally dominant, as the protest of better reason against it, and the courts are enforcing that maxim in our days more than ever before. The legislatures have yielded to this evolution in many statutes of amendment in pleadings called “statutes of jeofails” and in other matters; but we must remember that, from necessity, courts, without any statute, do possess inherently the power to correct misprisions, errors, and omissions, clerical or formal, the acts of officers, and even the parties litigant. Miller v. Zeigler (this term) 29 S. E. 981; Anderson v. Coal Co. 12 W. Va., 526. Now, as to the particular defect in hand. It does not savor of the substance of the affidavit, being only an omission to append a clerk’s certificate to verify the notary’s official authority and the genuineness of his signature,— facts existing, but not proven as yet, but provable by the clerk’s certificate offered as amendment. Whynot receive it? Affidavits for attachment, in matter of cause of action and grounds of seizure of property, are not amendable, except as statutes allow. Goodman v. Henry, 42 W. Va., 527, (26 S. E. 528), Baking Co., v. Bachman, 38 W. Va., 84, (18 S. E. 382). But, as to formalities, we cannot say so. Many decisions draw this distinction between substance and form in matter of amendment. Sommers v. Allen (decided November 1897) 28 S. E. 787; Wade At-tachm. § 72; Palmer v. Bosher, 71 N. C. 291; Shield v. Dothard, 59 Ala. 595; Anderson v. Coal Co., 12 W. Va., 526. I find the attachment case of Lawton v. Kiel, 51 Barb. 30, in point; holding that an objection that an affidavit was sworn to before a commissioner in another state, but no certificate of the secretary of state had been obtained as required [405] by the statute, was not fatal, as the omission might be amended and supplied. See, also, Goldie v. McDonald, 78 Ill. 605, allowing such further certificateas an amendment. Very often have courts permitted attachment affidavits to be amended, without a statute to enable them to do so. Anderson v. Coal Co., 12 W. Va., 526; Bank v. Gettinger, 4 W. Va., 305; 1 Shinn, Attachm. § 131; Stout v. Folger, 34 Iowa, 71; Wade, Attachm. § 72; Wiley v. Bennett, 9 Baxt. 581; Swearington v. Howser, 37 Kan. 126, (14 Pac. 436). As this touches the evidence of the actual oath, it is just like cases where the failure to sign the jiirat has been amended in our own and many other courts. Decrees quashing affidavits and attachments, and dismissing bill, are reversed; the motions to quash attachment and affidavits are overruled, and also the demurrer to the bill; and the cause- is remanded for further proceeding's. Reversed.