Kennedy v. Barker

11 D.C. 340

• Court: District of Columbia Court of Appeals
• Decided: May 20, 1881
• Docket: Law. No. 22,158
• Status: Published

Opinion

Mr. Chief Justice Cartter

delivered the opinion of the court.

This appeal is from a judgment against the defendant under the 73d rule. The plaintiff amended his declaration, and the question is, whether the affidavit filed at the time of bringing his action, setting out his cause of action, as permitted by rule 73, is to have the same effect upon the declaration as amended as it had upon the original. In other words, does the affidavit survive the amendment so as to operate as a verification of the latter pleading. "We do not.think that the amendment should do away with the verification unless it introduces new and material allegations. Here the cause of action and the bill of particulars are the same, and there is no change except that the indorser is dismissed from the suit.

When the amendment is merely formal and not in matter of substance, the cause of action, for all practical purposes, is not in the slightest degree affected, and in such case the verification ought to have the same authority as when first filed.

An objection was also taken on the argument that the affidavit does not set forth the indebtedness claimed by the plaintiff to be due, exclusive of all set-offs and just grounds of defense. The affidavit is involved and inartificial, and while it deserves unfavorable criticism in point of form, we think, upon examination, that it is in substantial compliance with the rule. .

The judgment is affirmed.