Stubbs v. Fleming

MONROE, C. J. Defendant having applied for a writ of review in this matter, and this court having ordered that same be granted, plaintiff now moves that the order be rescinded and the writ recalled, for the reason that the application therefor— “was not sworn to in accordance with law, and especially Act No. 191 of 1898, * * * the affidavit * * * having been made by the attorney for the applicant, instead of the applicant himself, with nothing to show that the applicant, Glen Fleming, was absent or incapable of making affidavit in person.” We are of opinion that the motion must be sustained. This court has held that the affidavit, in cases such as this, must be made by the litigant, if present in the parish and capable of making it. North British, etc., v. Sims, 132 La. 412, 61 South. 509. By no rule of construction could it be held that, though (as appears to have been the case here) the litigant be a resident of the parish where the court to which the application is presented holds its sessions, the affidavit can properly be made by his attorney, because he (the attorney) is in a distant parish. The order herein made is therefore rescinded, and this application is dismissed, at the cost of the applicant. O’NIELL, J., dissents.