Ross v. Ross

130 A. 677, 34 Del. 7, 4 W.W. Harr. 7, 1925 Del. LEXIS 42

Opinion

Per Curiam:

(1) Section 3010, Revised Code 1915, provides that the proceedings in an action for divorce shall be by petition, stating the “true cause of the complaint and verified by the affidavit of the petitioner that the facts stated are true and that the complaint is not made out of levity or by collusion.”

The action in this case is based on various acts of extreme cruelty alleged to have been committed by the respondent against the petitioner, all of which acts were, therefore, clearly within the personal knowledge of such petitioner. The same thing may be said with respect to whether the complaint was made out of levity or by collusion.

Under ordinary circumstances the language of an affidavit required by statute must be in direct and positive terms and not on information and belief. The same principle has already been applied in this state to an affidavit under the mechanic’s lien statute (Rev. Code 1915, §§ 2843-2851). Heitz v. Sayers, 1 W. W. Harr. (31 Del.) 221, 113 Atl. 901. See, also, Leigh v. Green, 64 Neb. 533, 90 N. W. 255, 101 Am. St. Rep. 592; Dyer v. Flint, 21 Ill. 80, 74 Am. Dec. 73; Gawtry, et al., v. Doane, 51 N. Y. 84; 2 C. J. 354; 18 Ann. Cas. 817.

It was not applied, however, in Naudain v. Naudain, 1 Boyce 248, where a petition in divorce alleged that the defendant had committed adultery. The court, in substance, said that the legislature could not have intended the petitioner to swear positively to facts which were not within her personal knowledge, but that reason does not exist when the charge is extreme cruelty toward the petitioner.

From what we have already said, it is clear that the affidavit in question does not comply with the statute (Section 3010, Rev. Code 1915) and the motion to dismiss the petition is, therefore, granted.