Wright v. Fallon

Ryan, O. J. The circuit court could not take jurisdiction of the appeal without the statutory affidavit. A substantial [490] defect in the affidavit could, therefore, be neither amended nor waived in that court; and the only question here is, whether the proper affidavit was returned by the justice of the peace. The affidavit may be made by the appellant or by his agent. E. S., sec. 3754. The justice returned a paper in the form of the statutory affidavit, purporting to be made by the appellant, certified by the justice to have been subscribed and sworn before him. The paper is not signed by the appellant or by any one for him. The justice’s jurat is, therefore, on its face, partially untrue and wholly unreliable. It would be unsafe to hold, on the évidence of the paper alone, that any one made oath to it, or, if any one, who. It is true that, on the same sheet of paper, the appellant appears to have personally signed the notice of appeal and the undertaking. That may imply his intention to sign and make the affidavit, but not that he did so. The justice certifies equally to the oath and to the signature, and was just as likely to dispense with the one as with the other. Upon an indictment for perjury, the paper would not be evidence that an oath had been administered. Neither is it here. Re JEady, 6 Dowling, 615. There are some cases in New York and elsewhere which hold the deponent’s signature to an affidavit unnecessary. Raff v. Spicer, 3 Caines, 190; Jackson v. Virgil, 3 Johns., 540; Millius v. Shafer, 3 Denio, 60; Soule v. Chase, 1 Robertson, 222; Hitsman v. Garrard, 1 Harrison, 124. But such a rule is essentially dangerous, tending to encourage not carelessness only but fraud; and even in New York the better rule appears to be that the signature is essential. Hathaway v. Scott, 11 Paige, 173; Laimbeer v. Allen, 2 Sandford S. C., 648. The question does not arise here, whether the deponent’s name, written by himself in the body of an affidavit, is a sufficient signature; for there is nothing in the record tending to show that the appellant’s name in the body of the paper purporting to be his affidavit, is in his own handwriting. [491] By the Court. — The judgment of the court below is affirmed.1 Footnotes [1] Lederer v. C., M. & St. Paul Railway Co. [38 Wis., 244], was overlooked iu writing this opinion. If there be a conflict between the cases, which may be a question, this must be taken to overrule that.