Smith v. Lyons

80 Ill. 600

• Court: Illinois Supreme Court
• Decided: September 15, 1875
• Status: Published

Opinion

Mr. Chief Justice Scott

delivered the opinion of the Court:

With his declaration plaintiff .filed what is designated as an affidavit of claim. It purports to have been sworn to before a notary public in the State of Kentucky, but his certificate does not state that by the laws of that State he has authority to administer oaths. This was necessary, under our statute, to make his certificate prima facie evidence of that fact. R. S. 1874, p. 726, sec. 6. Mor does the record contain any other evidence that a notary public has authority to administer oaths under the laws of Kentucky. What is called an affidavit of claim is, therefore, a nullity, it not appearing it was .sworn to before an officer having authority to administer, oaths and affirmations under any law of any State.

There being no affidavit of claim on file, it follows it was error to strike defendant’s plea from the files for want of an affidavit of merits, for which the judgment must he reversed and the cause remanded.

Judgment reversed.