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§ 144. Order of a court in an action.

Form No. 45.

At a regular term of the Superior Court of the City and County. of . . ., State of California, held at the City Hall in the City and County of San Francisco, etc.

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§ 145. Caption, commencement, and conclusion of affidavits.

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John Doe, of ... [and if there are two deponents, and James Doe, of. severally], being duly sworn, say [each for himself]: 1. I am the plaintiff [or other description of the deponent]. 2. I have, etc. [State facts sworn to].

Subscribed and sworn to before me, this [SEAL.]

...

[SIGNATURE.]

. . day of . . ., 19.. E. F., Notary Public.

§ 146. Jurat, where deponent is blind or illiterate.

Form No. 47.

...

Sworn before me, this . . . day of ..., 19.., the same having been in my presence [or by me] read to the deponent, he being blind [or illiterate], and he appearing to me to understand the same.

R. S., Notary Public.

147. Jurat, where deponent is a foreigner.

Form No. 48.

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Sworn before me, this . . . day of . . 19.., I having first sworn R. M., an interpreter, to interpret truly the same to the deponent, who is a foreigner and not understanding the language, and he having so interpreted the same to the deponent. A. C., County Clerk.

§ 148. Clerk's certificate to copy of complaint.

Form No. 49.

I hereby certify the foregoing to be a full, true and correct copy of the original complaint on file in my office, in the above entitled action.

In witness whereof I have hereunto set my hand and affixed the seal of the above-named court, this . . . day of . 19..

A. C., Clerk.

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I, S. T., clerk of the county court of said county of. hereby certify that O. P., before whom the above affidavit was taken, is a judge of the county court [or other title], which is a court of record of said state [or county, as the case may be], having a seal, existing pursuant to the laws thereof, in and for said county [or country, district, or otherwise], and that he is duly qualified and commissioned as such, and that the subscription to the same is his genuine signature.

Witness my hand and the seal of said court, at day of

[SEAL.]

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S. T., County Clerk.

CHAPTER XII.

VERIFICATION OF PLEADINGS.

§ 150. In General.-The codes of all states which have adopted the reformed system of procedure contain provisions in regard to verification of pleadings. In California, the code provides that every pleading must be subscribed by the party or his attorney: and where the complaint is verified, or when the state, or any officer of the state in his official capacity, is plaintiff, the answer must be verified, unless an admission of the truth of the complaint might subject the party to a criminal prosecution, or unless an officer of the state, in his official capacity, is defendant. In all cases of a verification of a pleading, the affidavit of the party must state that the same is true of his own knowledge, except as to the matters which are therein stated on his information or belief, and as to those matters that he believes it to be true; and where a pleading is verified, it must be by the affidavit of a party, unless the parties are absent from the county where the attorney resides, or from some cause are unable to verify it, or the facts are within the knowledge of his attorney or other person verifying the same. When the pleading is verified by the attorney, or any other person except one of the parties, he must set forth in the affidavit the reason why it is not made by one of the parties. When a corporation is a party, the verification may be made by any officer thereof. These statutes apply only to pleadings in actions or proceedings.2

§ 151. Verification defined.-At common law a verification consists merely of a concluding declaration of the bill, plea, or answer that the pleader is prepared to show the truth of the averments of his pleading. Under the code system it consists of an affidavit, separate from but immediately following and a part

1 Cal. Code Civ. Proc., §§ 437, 446; Alaska Codes, pt. 4, ch. 10, §§ 71-72, 217-219; Ariz. Civ. Code, par. 1358; Idaho Rev. Codes, § 4199; Mont. Rev. Codes, §§ 6564, 6565; Nev. Comp. Laws, 3150; N. Mex. Comp. Laws, § 2685; Or. B. & C. Codes §§ 82, 83;

Utah Rev. Stats., § 2983; Wash. Bal. Codes, 4925; Wyo. Rev. Stats., § 3576.

2 Parke & Lacy Co. v. Inter Nos Q. & D. Co., 147 Cal. 490, 82 Pac. 51; Christopher v. Condogeorge, 128 Cal 581, 61 Pac. 174.

of the pleading, stating that its averments are true to the personal knowledge of the party, save as to the matters therein stated on his information and belief, and as to those matters that he believes it to be true. The object of the verification is to secure good faith in the averments of the party.3

§ 152. Written pleadings. The provision that every pleading must be subscribed by the party or his attorney makes it necessary for all pleadings to be in writing or printing. And a stipulation entered on the minutes waiving plea of the statute of limitations. set up in an answer does not amount to an amendment of the answer so as to render finding on such issue unnecessary."

§ 153. Authority to take.-Any persons given authority by statute to take affidavits to be used in any court of justice have authority to take verifications to pleadings, as in case of district attorney, county recorder, or the party's attorney, if he is a notary public.

§ 154. Verification of complaint.-There is nothing in the statutes requiring the complaint to be verified, with the exception of complaints in certain actions where special relief is provided for, as in actions for injunction," actions against steamers, boats, and vessels,1o actions to remove or suspend attorneys, actions for the voluntary dissolution of corporations, 12 actions to contest an election,13 actions submitted without controversy, a petition to perpetuate testimony,15 actions in forcible entry and unlawful de

3 Patterson v. Ely, 19 Cal. 28. People v. Superior Court, 114 Cal. 466, 46 Pac. 383.

5 Spreckels v. Ord, 72 Cal. 86, 13 Pac. 158.

Haile v. Smith, 128 Cal. 415, 60 Pac. 1032.

7 Pfeiffer v. Riehn, 13 Cal. 643. 8 Kuhland v. Sedgwick, 17 Cal. 123. Cal. Code Civ. Proc., § 527; Falkinburg v. Lucy, 35 Cal. 52, 95 Am.

Dec. 76.

10 Cal. Code Civ. Proc., § 815.

11 Cal. Code Civ. Proc., § 291; Ariz. Civ. Code, par. 403; Idaho Rev. Codes, 84199; Mont. Rev. Codes, § 6565; Nev. Comp. Laws, § 2629; Or. B. &

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C. Codes, § 1069; Utah Rev. Stats., § 124.

12 Cal. Code Civ. Proc., § 1229.

13 Cal. Code Civ. Proc., § 1115; Ariz. Civ. Code, par. 2419; Idaho Rev. Codes, § 5026; Mont. Rev. Codes, § 7238; Utah Rev. Stats., § 917; Wash. Bal. Codes, § 1430; Wyo. Rev. Stats., § 362.

14 Cal. Code Civ. Proc., §§ 11381140; Alaska Codes, pt. 4, ch. 29, §§ 248-250; Idaho Rev. Codes, §§ 50605063; Or. B. & C. Codes, §§ 41, 193, 195, 199, 413; Utah Rev. Stats., §§ 3218-3220.

15 Cal. Code Civ. Proc., § 2084.

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tainer,16 and like actions when required by statute. In actions for arrest, replevin or claim and delivery, 18 attachment,19 and like proceedings, while the complaint need not be verified, it must be accompanied or followed by a separate affidavit. The safer and better practice, however, is to verify the complaint in all cases brought in courts of record. It is not required as to the claim in an action to foreclose a mechanic's lien.20

§ 155. In disbarment proceedings.-Under the code provision that the accusation in disbarment proceedings must be verified by the oath of some person that the charges are true, a verification upon information and belief will not be considered." But where the proceeding is instituted by a petition of the state bar association, filed with the supreme court, and by that court referred to the attorney-general, with instructions to embody the charges in an information, neither the petition nor the information need be under oath.22 Also, an application by a disbarred attorney for reinstatement must be verified.23

§ 156. In actions and defenses on written instruments.-When an action is brought or a defense to an action is founded upon a written instrument, a copy of which is contained in the pleading, the genuineness and due execution of such instrument is deemed admitted, unless the answer denying the complaint or an affidavit denying the answer be duly sworn to and served upon the party setting up such instrument.24 However, such verification of such denial need not be made if the party setting up the instrument refuse, upon written demand, served by copy upon such party or his attorney, and filed with the papers in the case, to allow an inspection of the original.25

In an action to determine heirship under section 1664 of the California Code of Civil Procedure, an unprobated will of decedent is not an instrument upon which a defense can be founded, so as

16 Cal. Code Civ. Proc., § 1166, as amended 1907.

17 Cal. Code Civ. Proc., § 481.

18 Cal. Code Civ. Proc., § 510.

19 Cal. Code Civ. Proc., § 538. 20 Parke & Lacy Co. v. Inter Nos O. & D. Co., 147 Cal. 490, 82 Pac. 51. 21 Mont. Rev. Codes, § 6412; In re Weed, 26 Mont. 241, 67 Pac. 308.

22 People v. Mead, 29 Colo. 344, 68 Pac. 241.

23 In re Newton, 27 Mont. 182, 70 Pac. 510.

24 Cal. Code Civ. Proc., §§ 447-448; Nev. Comp. Laws, § 3149; Rianda v. Watsonville Water etc. Co., 152 Cal. 523, 93 Pac. 79.

25 Cal. Code Civ. Proc., § 449.

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