Hecht v. Chase

MaRsiiall, J. Some questions are raised upon this appeal -which were presented in the one decided herewith, mentioned in the statement, and need not be discussed again. The trial court seems to have thought that there were defects in the verification, common to the two cases. While the supposed defects in the other case were found to be, at most, but inconsequential irregularities, the verification here is quite different. All allegations of the complaint are positive, while the verification is to the effect that “the same is true to his own- knowledge, except as to those matters therein stated on information and belief, and as to those matters he believes it to be true,” followed by a statement as to the nature of the action “and that said written instruments are now in his possession as such attorney,” and a statement of why the verification was not made by plaintiff, but no express statement of “his knowledge or the grounds of his belief.” Had the allegations been on information and belief, the statement in the verification as to their being true “to his owm knowledge” might be rejected as surplusage and the af-fiant considered to have verified only upon belief. Market Nat. Bank v. Hogan, 21 Wis. 317. But such allegations are positive, leaving nothing for the words “except as to those [345] matters therein stated upon information and belief, and as to those matters be believes it to be true,” to specifically point to. So unless we can fairly infer that the allegations were made upon belief, because, evidently, they were made by the attorney and, in the nature of things, most likely were so made, though positive in form, there is an absence of the statutory requirement for a statement “of his knowledge.” Morley v. Guild, 13 Wis. 576, 583. Possession of the paper, as held in Crane v. Wiley, 14 Wis. 658, and Market Nat. Bank v. Hogan, supra, and, espéeially, in connection with familiarity with the handwriting of the person sought to be charged, may furnish good ground for belief, and the statement of such ground be inferred therefrom, but not so as to knowledge. If the verification here, as in the case of Closson v. Chase, post, p. 346, 149 N. W. 26., had contained, immediately after the words as to possession of the written instruments, the words “which is the ground of his belief/’ the two would be substantially alike. Thus in order to sustain the verification here it would be necessary to overrule Crane v. Wiley, supra, and go further by holding that it is a sufficient statement of “his knowledge or ground of belief” to state that the written instrument is in the affiant’s possession. So we cannot escape the conclusion that the verification is fatally defective. As that requires an affirmance of the order, putting an end to the service and all proceedings based thereon, it is not necessary to discuss any other question raised, especially any not decided in Closson v. Chase. By the Court. — The order is affirmed.