Market National Bank of New York v. Hogan

21 Wis. 317

• Court: Wisconsin Supreme Court
• Decided: January 15, 1867
• Status: Published

Opinion

Dixon, C. J.

It is said by Mr. Justice Paine, arguendo, in Western Bank of Scotland v. Tallman, 15 Wis., 93, that undoubtedly a pleading may be verified by an attorney of a corporation upon the same state of facts which allows such verification by an individual.

We think he was correct in this, because the conditions prescribed for verification by the attorney are not limited by the character of the parties, but apply as well to actions where the party that sues or is sued is a corporation as where it is an individual. The attorney may verify, if the action or defense be founded on a written instrument for the payment of money only; or if all the material allegations of the pleadings be within his personal knowledge. R. S., ch. 125, sec. 19. These are the conditions, and the character of the parties, whether natural persons or corporations, is not one of them, and has nothing to do with the question. The subsequent clause, that when a corporation is a party the verification may be made by an officer thereof, was obviously intended to authorize a verification in behalf of corporations the same as individual parties are authorized to verify, and in the same cases. The word may means must, only where the rights or interests of the public are concerned, or where the public or third persons have a claim de jure that some power should be exercised. Cutler v. Howard, 9 Wis., 309. It cannot here beheld to mean must, so as to exclude a verification by the attorney.

The other objections to the verification are also untenable. The action is upon written instruments for the payment of money only, in the possession of the attorney. These facts, appearing by the affidavit, are sufficient to authorize the verification by the attorney. Gillett v. Houghton, 8 Wis., 311; Bates v. Pike, 9 id., 224.

All the allegations of the complaint being upon information and belief, a verification on information and belief also is good.

That part of the affidavit in which the affiant says that the complaint is true to his knowledge, may be rejected as surplusage. Kincaid v. Kip et al., 1 Duer, 692, cited and approved in Morley v. Guild, 13 Wis., 583. The verification in Crane v. Wiley, 14 Wis., 658, was bad because it was held to be a verification upon knowledge, and the knowledge-of the attorney was not set forth. Here the grounds of his belief are set forth.

Possession alone of the instrument on which the action or defense is founded, is a sufficient statutory ground of belief to enable the attorney to make the affidavit. Gillett v. Houghton, and Morley v. Guild. And it matters not what other real or supposed grounds of belief may be stated, they will not vitiate.

By the Court — Order affirmed.