Morley v. Guild

By the Court, Dixon, C. J. The facts of these two cases, so far as they are connected with any disputed questions of law, are precisely the same, and both were treated as one cause at the argument. They present two questions of practice for our determination. The first relates to the time within which a defendant in a foreclosure action, against whom no personal claim is made, may be permitted to answer, under the operation of sec. 5 of chap. 124 of the Revised Statutes, and sec. 1 of chap. 220 of the Laws of 1859, in a case where he is served with a summons and a notice of no personal claim, and within ninety days thereafter makes a demand in writing that he be served with a copy of the complaint. In these cases the demands of copies of complaints were made some three or four days before the expiration of ninety days after seivice, and, in obedience thereto, copies were served within twenty d^ys thereafter, but not until the ninety days had expired. The defendants served their answers within twenty days after receiving the copies of the complaints. The answers were returned for the reason that the time for answering had expired, and becausp they were not properly verified. [ The first section of the act of 1859 declares, that in all actions for the foreclosure of mortgages on real estate commenced after its passage, the defendants shall have ninety days time to answer the complaint, after the service of summons or publication of notice as now required by law; and that no default shall be entered until after the expiration of such time. Section 5 of chapter 124, which is the only ex — 578 — isting statutory regulation of tbe time for serving complaints as well as answers under certain circumstances, and wbicb is applicable to all actions and governs tbeir proceedings, except so far as it is modified by tbe first section of tbe act, provides in tbe first clause, that a copy of tbe complaint need not be served with tbe summons, but that in such case tbe defendant may, witbin twenty days thereafter, demand a copy of tbe complaint, wbicb shall be served witbin twenty days after such demand; and that after such service tbe defendant shall have twenty days to answer. By tbe second clause it is provided, that in tbe case of „a defendant against whom no personal claim is made in tbe action, tbe plaintiff may deliver to him with tbe summons, a notice setting forth tbe general object of tbe action, a brief description of tbe specific real or personal property to be affected by it, and that no personal claim is made against such defendant, in wbicb case no copy of tbe complaint need be served on tbe defendant, unless witbin tbe term for answering, be shall, in writing, demand tbe same. From these provisions it will be seen that, by tbe strict language of tbe laws, a defendant who is served with a copy of tbe summ ons only, must demand a copy of tbe complaint witbin twenty days after such service; while one who, in addition, receives a notice of tbe object of tbe action and of no personal claim, may do so witbin tbe term for answering, which, in tbe case of actions for foreclosure, is ninety days. On tbe part of tbe respondent it is insisted, first, that by tbe terms of tbe first section of tbe act,.the time for answering in such actions cannot exceed ninety days; and secondly, that inasmuch as at tbe time of tbe passage of tbe Revised Statutes, tbe expressions “twenty days” and ‘‘term for answering ’’ meant precisely tbe same thing, they are to be so understood and interpreted now, notwithstanding tbe changes wbicb have been introduced by tbe act of 1859 in tbe class of cases under consideration. We do not think that either position is correct. There is nothing in tbe language of tbe first section which would in any manner uphold us in saying that tbe legislature intended that defendants in such actions should in no case have more than ninety days in wbicb to — 579 — answer. It is clear that they intended that such defendants should have that full number of days, but that they have no more cannot be inferred. On the contrary, the fair presumption, both from that and other legislation on the same subject, would be that the legislature were both willing and desirous that defendants in such actions should have not only all the time which it could give them, but also such as could be obtained through the skill and ingenuity of the shrewdest and most artful legal practitioners. And as to our saying that the words “term for answering,” as applied to these actions, mean twenty days, it is manifest that we cannot do so without contradicting the express language of the statute. To do it, in order to make the practice where notice of no personal claim is served, conform to that where such notice is not served, would be for us to perform an act of judicial legislation, not less repugnant to the principles of the constitution than an act of legislative adjudication. The language, being plain and unambiguous, must govern; and the fact that it may produce unreasonable or incongruous results, furnishes no justification for a departure from it. It may have been an oversight, and if so, it is another illustration, of which we have already had too many, of the dangerous tendency of legislation so hasty ‘ and ill considered as to produce statutes which are frequently a surprise upon those who have enacted them. So far, therefore, as the objection to the answer depended upon the time of its service, it was not well founded. This brings us to the consideration of the other question, which is, whether the complaints were properly verified. The defendants, conceiving that they were not, served answers without oath, which were returned, and judgments entered as upon a default to answer. The affidavits were made by one of the attorneys for the plaintiff, who, in substance, deposed that he was such attorney; that the plaintiff was not a resident of the county in which the suits were brought, but resided in the state of New York, and was therefore unable to make them; that the actions were founded upon bonds and mortgages in writing for the payment of money only, which were in his possession as such — 580 — attorney; that all tbe material allegations of tbe complaints were grounded, either on tbe bonds and mortgages ór tbe information given, or communications made to bim by tbe plaintiff, personally or in writing, wbicb communications be believed to be true; that bis knowledge and tbe grounds of bis belief on tbe subjects of said complaints, and tbe reasons wby tbe affidavits of verification were not made by tbe plaintiff, were as above ■ stated; and tbat be bad read tbe complaints and believed them to be true. Tbe allegations of tbe complaints were made in part by way of direct affirmation, and in part upon information and belief. Tbe principal ground of objection to tbe verification is, tbat tbe affidavit did not pursue tbe language of tbe first clause of section 19 of cbap. 125 of tbe Bevised Statutes, and state in effect tbat tbe complaint was true to bis knowledge, except as to those matters stated on information and belief, and as to those matters be believed it to be true. It is contended tbat tbe statute makes these words essential to every verification, whether it be made by a party, an agent, or an attorney, and tbat they are particularly so whenever tbe averments of tbe pleadings are positive, or as upon tbe knowledge of tbe parties making them. Looking to tbe phraseology of the entire section, we are of tbe opinion tbat this interpretation cannot be sustained. Tbe difficulty With tbe section, and tbat wbicb has led to so much doubt and perplexity is, as Judge Harris says in Mead vs. Gleason, 13 How. Pr. R., 310, tbat by it tbe framers undertook to accomplish quite too much, and in doing so have crowded together several provisions wbicb should have been tbe subjects of distinct sections. Tbe first clause prescribes in substance what the verification must be, and tbat it must be made by tbe party, or 'one of them, if there be several, if such party be within tbe county where tbe attorney resides, and capable of making tbe affidavit. In providing for this verification by tbe party, who is generally supposed to have more or less direct knowledge of tbe subject of tbe litigation, it was very natural for them to say, tbat as to those matters of wbicb be was personally cognizant, be should swear tbat be knew them to ■ be true, and of those wbicb — 581 — rested on Ms information and belief, tbat be should state tbat be believed them to be true.; And in adopting form of verification, tbe legislature may, no doubt, bave bad in view tbe forms of tbe allegations contained in tbe complaint or other pleading, contemplating tbat those things which were known to tbe party would be so stated therein; and tbat those which came to him ¡ through information derived from others, and of which he did not possess positive knowledge, would be stated as upon information and belief; and that thus the pleadings and verification would harmonize and explain each other. But' in no case do we think that the legislature intended to prescribe anything more than what should be the substance of the verification according to the circumstances of the person making it. They did not intend to prescribe a form of oath which must at all times be followed. Nor do we think it was intended that the verification should in all cases follow or be governed by the form of the allegations contained, in the pleadings; nor that the allegations of the pleadings should be varied so as to accommodate themselves to the condition of the person who is to verify them. With a party or other person possessing actual knowledge of the matters in controversy, or some part of them, no doubt greater strictness in pursuing the language, or rather the substance, of the statutory requirement should be observed, and the verification, or the verification and pleadings, should be so drawn as to show what matters he verifies upon his knowledge, and what upon his belief of their truth. Grood faith and the proper accomplishment of the objects in view, which were truthfulness in pleading, the narrowing of the issues to the facts really controverted, and the exclusion of fictitious and sham statements and defenses, require this. It is furthermore necessary, in order that falsehood and ¿eijury may be the more easily and certainly detected and punished. But where the oath of the person making the verification rests entirely upon information and belief, it clearly is not necessary for him to say that the pleading is true to his knowledge, and then to neutralize the statement with an exception wMch places every allegation upon his belief. The legislature — 582 — C011ld never have intended to establish any such idle cere- . „ m a matter ox so much solemnity and importance. It would be a merely formal and not a substantial act; a mere empty sound of words, when the affidavit itself, or the affidavit and pleadings, would otherwise show that there was nothing of which the affiant undertook to speak as of his own positive knowledge. Both the language and spirit of the section require that the person verifying the pleading should .have personal knowledge or reasonable grounds of belief that the pleading is true, and that when he verifies it upon such knowledge he shall so state, but if upon belief, then his oath to such belief shall be sufficient. In the latter case, therefore, it is enough, if he is a party, that he states that he believes it to be true; and if an agent or attorney, that he, in addition, sets forth his grounds of belief, and the reasons why the affidavit is not made by the party. When the agent or attorney verifies the pleading upon his personal knowledge of its material allegations, he must, besides saying that he knows it to be true, set forth his knowledge upon the subject. And when a-pleading is verified upon information and belief, we do not think the form of its aver-ments material. The conscience of the person making the affidavit may be as firmly bound, and perjury as well assigned, when the averments are direct and positive, as when they are made upon information and belief. If he makes the affidavit without having reasonable grounds for believing^ and without believing, that all the material facts and allegations are true, in whichever form they may be stated, he is forsworn, and, upon the proper proof, may be convicted of perjury. The language of the pleading is the language of the party, the use of which is supposed to be governed by certain principles of law as well as of truth and consistency; and these principles would be most needlessly violated were we to hold that it must at all times be changed or varied to suit the condition of the agent or attorney, when the same end can be attained without such change or variation. It would frequently destroy the force of the language and render the pleading false on its face. Many transactions are of a personal nature and must be known to the parties in inter — 583 — est. In such cases, to say that the party, who is supposed to speak, must ignore his acquaintance with the facts, and the court that he has been informed and believes that such and such things took place, is to say that the law compels an absurdity. Take, for example, the common case of an action upon a promissory note, by the payee against the maker, where all the facts are known to the payee, and the complaint is to be verified by the attorney, is it to contain a false statement of facts in order that he may do so ? Or take that of an action to recover damages for an assault and battery, committed under circumstances where the complaining party must know all the facts attending the alleged offense. And suppose the party accused has admitted them to the agent, who is the only witness, and in the meantime, while the plaintiff is physically incapable of making the affidavit, an action is to be brought and the agent desires to verify the complaint. Is the plaintiff to come and say to the court that he is informed and believes that on a certain day and at a certain place an assault and battery was committed upon him, and that he is also informed and believes that A. B. is the person who committed it ? Such a mode of pleading, in this and many other actions, would seem absurd, and we do not believe the legislature intended it. A very clear and sensible discussion of the question will be found in the case of Kinkaid vs. Kipp et al., 1 Duer, 692. The pleading in that case (the answer of the defendants), con tained no statements or admissions on information and belief, but all were made as of their positive knowledge. The defendants verified it by affidavit, in which they severally made oath, each for himself, that it was true of his own knowledge. The objection was, that the verification was not in the form or to the effect and purport prescribed by the statute; that it did not state that the answer was true of the defendants’ own knowledge, except as to matters therein stated on information and belief and as to those matters they believed it to be true. The court decided that the verification was sufficient, and that the addition of those words would have been useless and improper. They say: “ This objection assumes that in all cases where a pleading is verified, it is necessary, un — 584 — der the Code, to insert in the verification the exception as to matters stated on information and belief, whether any matters are so stated in the pleading or not. And it may be a common practice to put the verification in that form indiscriminately in all cases, but we have no hesitation in saying that in a pleading which alleges or admits nothing on information or belief, it is not only unnecessary bnt improper to pnt such a senseless exception in the verification. It is improper because it implies a falsehood, and makes the party swear to a false implication. The Code does not in terms require that such a verification, as a form, shall be tacked to every pleading, whether it fits it or not; and it would be against common sense and reason to give it such a construction. If a party who, in his answer, had stated nothing on information and belief, thinks it advisable to swear that he believes such statement to be true, he doubtless has a right to do so; but if in such case he confines himself to swearing that his answer is true to Ms knowledge, he not only complies with the requirements of the Code, but avoids what, to say the least of it, is a harmless absurdity.” See also Dixwell vs. Wordsworth, 2 Code Reporter, 1; Southworth vs. Curtis, 1 Code Reports, N. S., 412; and 6 How. Pr. R., 271. This view of the statute disposes of the question. The verification here was made under the second clause, and belongs to the second class of cases provided for in the section. In Gillett vs. Houghton, 8 Wis., 311, it was held that the possession by the attorney or agent, of a written instrument for the payment of money only, is in all cases a sufficient statutory ground of belief and reason for his verifying the complaint in an action brought upon it. These facts are fully made to appear in the affidavits before us; and the attorney having sworn that he believed the complaints to be true, it was a sufficient verification, and the answer of the appellants was properly returned for want of being verified. The orders of the circuit court refusing to set aside the judgments for irregularity, are therefore affirmed.