Holliday v. Riodan

25 Ga. 629

• Court: Supreme Court of Georgia
• Decided: June 15, 1858
• Status: Published

Opinion

By the Court.

McDonald, J.

delivering the opinion.

The Judgment of the Court below must be reversed, on the ground that the affidavit is not sufficient in law, to entitle the comq lainant to the strong remedy he prays for. The bill alleges that the complainant entertains serious apprehensions that the property will be removed beyond the limits of the State, and that his rights as guardian and the rights of his ward, will be impaired unless a remedy be afforded for the preservation thereof. He deposes that the facts contained in the bill are true to the best of his knowledge and belief.

The affidavit required by the statute, Cobb 527, is positive. An affidavit to the best of the knowledge and belief of the complainant is not the affidavit required by the act. Of some of the facts necessary to be positively sworn to, he may have no knowledge, and may have no reasons for believing them, true.

The bill was amended in the Court below so as to remedy objections respecting the jurisdiction of the Court and the locus of the property.

The facts alleged in the bill are sufficient to entitle the complainant to the remedy he asks, if the affidavit were sufficient; but that being insufficient, we reverse the judgment of the Court below, with instructions, however, to allow the complainant, if he desires it, to make an affidavit in conformity with the statute, and thereupon to grant to complainant (the relief to which he may be entitled under the act.

Judgment reversed.