Degree v. Orson

D. Alaska

Degree v. Orson

6 Alaska 289

CourtDistrict Court, D. Alaska

DecidedOctober 9, 1920

DocketNo. 1992-A

StatusPublished

This text of 6 Alaska 289 (Degree v. Orson) is published on Counsel Stack Legal Research, covering District Court, D. Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Degree v. Orson, 6 Alaska 289 (D. Alaska 1920).

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Opinion

JENNINGS, District Judge.

Defendant has moved that the complaint in this case be stricken on the ground that it is not properly verified. The only objection pointed out is that the verification is made by an agent, and there is no statement in said verification that the plaintiff is absent from the territory. The complaint is not founded on a written instrument. ,

The verification reads as follows:

“Tom Mauzay, being first duly sworn, on oath deposes and says: I am the agent of the plaintiff Salina Degree. I have heard read the above and foregoing complaint, and the same is true as I verily believe. I make this verification because the facts therein alleged are within my own knowledge.”

Counsel for the defendant contends that an agent is not authorized to make a verification unless his principal is absent from the territory, or unless the action is founded upon a written instrument, but that contention cannot be sustained. The words, “if all the material allegations of the pleading be within the personal knowledge of the agent,” which occur in the paragraph of our Code concerning the verification of a complaint, have been specifically, construed [290]*290by the Supreme Court of Oregon in the case of Steamer Senorita v. Montraville Simonds et al., 1 Or. 275. In that case the court says:

“But we are of the opinion that it was the intention of the Legislature to provide for another class of eases, in this third clause of the section, and that these separate clauses of the section may be construed separately.”

In the case of West v. Home Ins. Co. (C. C.) 18 Fed. 623, Judge Deady said:

“And such agent or attorney may make it [verification] in any case, ‘if all the material allegations’ of the answer are within his ‘personal knowledge.’ ”

The motion to strike, therefore, cannot be sustained on the ground alleged.

The verification, however, needs amending in this particular, to wit: Said verification states: “I make this verification because the facts therein alleged are within my own knowledge.” What facts are within his own knowledge? The answer is, the facts alleged in the verification. The statement of such knowledge is not a compliance with the statute. The statute requires that the person making the verification must have knowledge of the facts stated in the pleading, not in the verification.

The motion to strike the complaint, therefore, will be granted, unless the plaintiff amends the verification by stating that the facts stated in the pleading are within his own knowledge.

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JENNINGS, District Judge.

Defendant has moved that the complaint in this case be stricken on the ground that it is not properly verified. The only objection pointed out is that the verification is made by an agent, and there is no statement in said verification that the plaintiff is absent from the territory. The complaint is not founded on a written instrument. ,

The verification reads as follows:

“Tom Mauzay, being first duly sworn, on oath deposes and says: I am the agent of the plaintiff Salina Degree. I have heard read the above and foregoing complaint, and the same is true as I verily believe. I make this verification because the facts therein alleged are within my own knowledge.”

Counsel for the defendant contends that an agent is not authorized to make a verification unless his principal is absent from the territory, or unless the action is founded upon a written instrument, but that contention cannot be sustained. The words, “if all the material allegations of the pleading be within the personal knowledge of the agent,” which occur in the paragraph of our Code concerning the verification of a complaint, have been specifically, construed [290]*290by the Supreme Court of Oregon in the case of Steamer Senorita v. Montraville Simonds et al., 1 Or. 275. In that case the court says:

“But we are of the opinion that it was the intention of the Legislature to provide for another class of eases, in this third clause of the section, and that these separate clauses of the section may be construed separately.”

In the case of West v. Home Ins. Co. (C. C.) 18 Fed. 623, Judge Deady said:

“And such agent or attorney may make it [verification] in any case, ‘if all the material allegations’ of the answer are within his ‘personal knowledge.’ ”

The motion to strike, therefore, cannot be sustained on the ground alleged.

The verification, however, needs amending in this particular, to wit: Said verification states: “I make this verification because the facts therein alleged are within my own knowledge.” What facts are within his own knowledge? The answer is, the facts alleged in the verification. The statement of such knowledge is not a compliance with the statute. The statute requires that the person making the verification must have knowledge of the facts stated in the pleading, not in the verification.

The motion to strike the complaint, therefore, will be granted, unless the plaintiff amends the verification by stating that the facts stated in the pleading are within his own knowledge.

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6 Alaska 289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/degree-v-orson-akd-1920.

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