Knight v. Elliott

22 Minn. 551, 1876 Minn. LEXIS 56

• Court: Supreme Court of Minnesota
• Decided: April 25, 1876
• Status: Published

Opinion

Gileillan, C. J.

According to the decision of this court in McFarland v. Butler, 11 Minn. 72, the filing of an affidavit by a party appealing from the judgment of a justice of the peace is essential to give the appellate court jurisdiction. In this case the paper filed had a regular jurat, but there was no official designation to the name of the person before whom it purported to have been sworn. There may be cases where such a defect can be supplied by other proof, as in State v. Green, 3 Green, (N. J.,) 88, where the question was whether certain officers had duly qualified, and the written oath produced had no official designation of the person before whom it was taken, and the court allowed extraneous proof of the official character. The court, referring to a different holding of their court as to affidavits to be used as evidence on the trial of a cause, or as the foundation for some motion or proceeding in court, says : “Affidavits are very different from official or promissory oaths, which are not at all in the nature of evidence. An affidavit, when offered to be read in evidence, must appear upon the face of it to be what an affidavit ought to be, to entitle it to be read. It must appear to have been taken before the proper officer, and in compliance with all legal requirements.” And especially this requirement should be complied with when the affidavit is to be presented to an officer for his immediate action upon it, and when he has no other means but the paper itself to determine its character. The affidavit hied with a justice to bring an appeal should be complete on its face.

Order affirmed.