Yoe & Co. v. Nichols

1 N.W. 664, 51 Iowa 330

• Court: Supreme Court of Iowa
• Decided: June 9, 1879
• Status: Published

Opinion

Seevers, J.

— I. Did the court err in striking the reply from the files ? We must say we think it did. It is provided by statute that “if the statements of a pleading are known to any other person than the party, such person may make the affidavit which shall contain averments showing affiant competent to make the same.” Code, § 2673. Mr. Kenyon states in the affidavit that he “knows the facts therein stated to be true” as he believes. This is the averment required by the statute, and when made affiant’s competency has been shown. Why he thus “knows” is not required to be stated. If one knows a fact he is competent to speak in reference thereto. He may not in fact have any knowledge on the subject. Nevertheless, if he’ testifies he has, his eomj>etency must be conceded. Rausch, Ex'r, v. Moore, 48 Iowa, 611.

It is stated in the reply that plaintiffs have no sufficient knowledge of the matters alleged in the answer to enable them to form a belief as to the truth thereof, and Mr. Kenyon states in the affidavit that the reply is true as he believes. This, it is said, is swearing to a belief of a belief, and is, therefore, insufficient. The point would have had seemingly more force when section 4033 of the Revision was in force than now.

The plaintiffs have not sufficient knowledge to form a belief, and Mr. Kenyon, in the affidavit, states this to be true, as he believes. We think this is sufficient in the absence of a statute providing otherwise.

II. That a counter-claim was pleaded will be conceded, the damages claimed being two hundred dollars because the goods were not as represented or warranted, and five hundred dollars because of a loss of trade or business.

The motion for judgment for costs was sustained, we presume, because there was no reply controverting the counterclaim, which was, therefore, deemed admitted. By failing to reply every material allegation of the answer is deemed to be true. “But an allegation of value or amount of damage shall not be deemed true by a failure to controvert it.” Code, §■ 2712.

The effect of the ruling of the circuit court was an arbitrary determination that the defendant had sustained damages in a sum equal to three hundred and thirty-eight dollars and forty cents, the amount of plaintiffs’ account. This was-done because the amount of damages claimed in the answer had not been controverted, notwithstanding the statute expressly provides such failure shall not have that effect. In this-ruling there is error. Such damages, not being liquidated, must-be assessed by either the court or a jury. Code, § 2872. Conceding the plaintiffs were in default, for want of a reply, still they had the right to appear and cross-examine the witnesses upon the assessment of damages. Code, § 2873.

Reversed.