Hutchison v. Colgate & Co.

280 F. 1020, 52 App. D.C. 46, 1922 U.S. App. LEXIS 1908

Opinion

VAN ORSDEB, Associate Justice.

This appeal is from a judgment rendered upon the insufficiency of an affidavit of defense under the seventy-third rule.

The essential averment of the affidavit is made by appellant, defendant below, upon “information and belief,” and the other aver-ments are made with a disclaimer of knowledge of the facts relative thereto. It was therefore incumbent upon defendant to allege his ability to prove at the trial the facts upon which he based his defense, which was not done. The affidavit, in the last analysis, is made upon information and belief, without a tender of proof of the facts upon which defendant intends to rely. This is insufficient. Woodmen v.Davis, 48 App. D. C. 614; Hazen v. Van Senden, 43 App. D. C. 161.

The judgment is affirmed, with costs.