Banks v. Gay Manufacturing Co.

12 S.E. 741, 108 N.C. 282

• Court: Supreme Court of North Carolina
• Decided: February 5, 1891
• Status: Published

Opinion

Clark, J.:

The Code, § 258, prescribes, “ when a corporation is a party, the verification may be made by any officer thereof.” The answer of the defendant company is sworn to by an agent merely, and his Honor rightly held that the answer was not verified. The Code, § 217, permits a summons against a corporation to be served on an agent, but this was not extended to verification of pleadings by the corporation. There is an evident reason for the difference. Besides, if the answer of a corporation could be verified by an agent, the affidavit is not sufficient, in that it does not set forth “ his knowledge or the grounds of his belief on the subject, and the reason why it is not made by the party.” When the verification is by an officer of the company this is not required, for the officer speaks for and is the mouth-piece of the corporation (Bank v. Hutchison, 87 N. C., 22), but it is necessarj1' to be set out in all cases where the verification is made by an agent or attorney.

The Court in its discretion might have allowed the answer to be verified properly (The Code, § 274), and have granted a continuance for that purpose, as prayed by the defendant, but its refusal of the continuance is not reviewable. State v. Lindsey, 78 N. C., 499; State v. Scott, 80 N. C., 365.

There being a judgment by default and inquiry, the issue tendered by defendant was properly refused, and in lieu thereof there was submitted to the jury the issue, “What damages, if any, has plaintiff sustained?” The issue tendered by defendant was not raised, as there was no answer, and that matter was settled by the judgment by default.

The only inquiry was as to the quantum of damages, which was submitted. No error.