Lederer v. Chicago, Milwaukee & St. Paul Railway Co.

Cole, J. This is an appeal from an order of the court below allowing a notary public to sign his name officially to the jurat of an affidavit of appeal as of the day when the oath was actually administered by him, and denying a motion to dismiss the appeal. It appears from two affidavits which were used on the part of the defendant company in resisting the motion to dismiss, that the affidavit for the appeal was signed by the general solicitor of the company, wdio was authorized to make affidavits for and in behalf of such company, and that the oath was actually administered, but the notary omitted, through inadvertence or mistake, to sign the/?«;aí, as he should have done. The question is, whether the defect was not amendable under sec. 37, ch. 125, R. S. We think it was. It is said by the counsel for the plaintiff, that as an appeal is given by statute, the law must be strictly complied with, or no appeal is taken. This position is doubtless correct, and fully sustained by the authorities to wffiich. the counsel refers. In this case the requirements of the statute were complied with; an affidavit was in fact made in proper form, but lacked the signature of the officer to the jurat. Ho amendment to the body of the affidavit was necessary in order to meet the demands of the statute, as in Brown v. Pratt, 4 Chand., 32; Brearly v. Warren, 3 Wis., 397, and Chinnock v. Stevens, 23 id., 396; but the affidavit was not authenticated. But, while the jurat was not signed, it did appear that this was the mistake of the officer, and that the affidavit was in fact made by the solicitor of the company. It seems to us that the case was fully within the spirit of the decisions in Ladow v. Groom, 1 Denio, [247] 429; and The State v. Green. 3 Green (N. J. Law), 89; and that there was no error in permitting the notary to subscribe the jurat under the circumstances. By the Court. — The ordér oí the county court is affirmed. Ryan, 0. J., took no part in the decision of this cause.