Burmester v. Moseley

The opinion of the court was delivered by Mr. Justxce McIver. These two cases presenting precisely the same legal question, growing out of the same state of facts substantially, were heard and" will be considered together. That question is, whether the complaint was properly verified. All of the allegations in the complaint are made in such a form as necessarily to imply that they are made upon the knowledge of plaintiff, there being nothing whatever to indicate that any .one of these allegations wras made upon information and belief, and yet the affidavit appended for the purpose of verifying the complaint shows with equal plainness that some of the allegations were based on plaintiff’s own knowledge and some upon information and belief; but, as we have said, there is nothing whatever to indicate which of the allegations are made on knowledge and which on information and belief. The affidavit is “that the foregoing complaint is true of his own knowledge, except as to those matters which are therein stated on .his information and belief, and as to those matters he believes it to be true.” This shows beyond all question that the affiant did not affirm, and did not intend to affirm, that all of the allegations were true of his own knowledge, but only that all were true except such as were stated [254] on information and belief; but what are so stated it is impossible to tell; and this the adverse party certainly had a right to know; While, therefore, it is perfectly manifest from reading the complaint and verification (copies of which should be incorporated in the report of this case), that some of the allegations are made upon knowledge, while others are made on information and belief, it is equally manifest that no one could possibly discover which were based upon knowledge and which upon information and belief. Such a verification is clearly insufficient under the plain meaning of section 178 of the Code, prescribing the manner in which a pleading must be verified, and the same has been so expressly held in the recent case of Hecht v. Friesleben (28 S. C., 181), following the principles laid down in the earlier case of Smalls v. Wilder, 6 Id., 402. It is true that in the case last cited the question was as to the sufficiency of a verification of an answer, while here the question is as to the sufficiency of the verification of a complaint; but it cannot be doubted that the same principle applies to both. The principle is there correctly stated as follows: ‘‘The great object enforced by the statute, in prescribing what is essential to verification, is to make it appear on the face of a pleading and its verification what matters therein contained are set forth according to the knowledge of the party making such pleading, and what matters are stated according to information and belief only. • Any mode of verification that does not accomplish this end defeats the object of the statute, and accordingly must be held defective as to matters of substance.” .But the precise question here presented was expressly decided in Hecht v. Friesleben, supra, in favor of the view contended for by appellant, and is conclusive of the present inquiry. We refer to the reasoning of the court in that case, without quoting from it, as directly applicable to the case now under consideration. It seems to us clear, therefore, that the Circuit Judge erred in holding the verifications of the complaint in these cases to be sufficient. The judgment of this court is, that the judgment of the Circuit Court in each of the above stated cases be reversed, and that said cases be remanded to that court for trial on the issues presented by the pleadings.