Railway Co. v. Deane

31 S.W. 42, 60 Ark. 524, 1895 Ark. LEXIS 191

Opinion

Battle, J.

While it is proper to prefix a venue to an affidavit, and desirable that it should be done, the failure to do so is not fatal to the affidavit. “ The important thing is that it shall appear that the oath was administered by a person authorized to administer such oaths.” When that appears, the presumption, in the absence of a venue, is that the officer before whom the affidavit was made acted within his jurisdiction, when it was sworn to and signed before him. Reavis v. Cowell, 56 Cal. 588; Parker v. Baker, 8 Paige, Ch. 428; Barnard v. Darling, 1 Barb; Ch. 218; State v. Henning, 54 N. W. 536; Proffat on Notaries, sec. 52, and cases cited.

An affidavit in which the venue is not stated is defective, but can be amended. The court may require it to be done, according to the facts, in the most practical manner, and tax the party filing it with the cost of the amendment. But, under the statutes of this State, it cannot legally dismiss an appeal from a justice of the peace to the circuit court, on account of defects in affidavits. Sand. & H. Dig. sec. 4433.

The judgment of the circuit court dismissing the appeal is reversed, and the cause is remanded for further proceedings.