Story's Administrator v. Story

32 Ind. 137

Opinion

Gregory, J.

The alleged error complained of is, that the court below gave judgment against the estate of the intestate for costs, in allowing the claim of the appellee.

The appellee filed a claim against the estate for two hundred and seventy-two weeks’ work, at three dollars per week, giving credit thereon of divers items, amounting in the aggregate to seventy-four dollars and fifty cents, and closing with this statement, “Amount due, $741.50.” The account was verified by the affidavit of the claimant, as follows: “I, Harriet A. Story, of Underhill, in the county of Chittenden, and State of Vermont, of lawful age, on oath depose and say that the within is a correct account of the number of weeks that I worked for my step-father, in his family, which was done at his special request, since I arrived at the age of 18 years, giving correct statement of the debit and, credit, according to the best of my knowledge and belief.”

The statute requires the claimant to attach to the claim an affidavit, “ to the effect that the same is justly due and wholly unpaid.” In the absence of such an affidavit, no costs can be recovered by the claimant. 2 Q-. & H. 503.

JE. B. Wilson, for appellant. J. D. New and J. M. Hill, for appellee..

It is not necessary to follow the words of the statute; it is enough that the affidavit is to the effect that the claim is justly due and wholly unpaid.

The words italicized in the affidavit, taken in connection with the fact that the claim showed the “ amount due,” is a substantial compliance with the statute.

Judgment affirmed, with costs.

Ray, J., dissents.