Crist v. Parks

19 Tex. 234

Opinion

Wheeler, J.

If the case is truly stated in the petition, it. does not admit of question that the Justice gave a wrong judgment, to the injury of the plaintiff, and he was entitled to his remedy.

It is objected that the affidavit of the truth of the petition is not signed by the party. The Statute does not prescribe signing as a requisite of the affidavit. (Hart. Dig. Art. 1758.) But we are referred, for the definition of an affidavit, to Bacon’s Abridgement, title “ Affidavit,” where it is said, “ An affidavit is an oath in writing, signed by the party deposing, sworn before and attested by him who hath authority to administer the same.” But that definition is probably founded on the practice, under rules of Court, (Ib. A and notes,) and doubtless it is the better practice for the party to sign his name to the affidavit. But it is matter of practice and is not absolutely essential where there is no statute or rule of Court which requires it. It certainly does not enter into the original meaning and definition of an affidavit. (3 Bl. Com. 304 ; Burrill, Law Dictionary, title “ Affidavit;” Bouvier L. Dic., same title.) But if signing were essential, we entertain no doubt that the Court should have-permitted the party to supply the omission.

The judgment is reversed and the cause remanded.

Reversed and remanded.