to require plaintiff to deny the genuineness of such instrument by affidavit.26 In Nevada, oral testimony is admissible for making the denial where the contract set up as a defense was not signed or executed by the parties.27 A letter set out in the answer, merely giving construction to previous communications, is not a written instrument whose execution is admitted by failure to deny it under oath.28 And though plaintiff does not file an affidavit denying a receipt pleaded by defendant, he is not prevented from proving surrounding circumstances by parol, and showing that it was executed through mistake or fraud.29 Failure to deny the genuineness of a check set forth in defendant's answer is merely an admission thereof, but under section 462 of the Code of Civil Procedure the facts pleaded in the answer by way of defense are deemed controverted and the court cannot, then, grant judgment for defendant upon the pleadings.30 § 157. Effect of verifying complaint.-By verification of the complaint plaintiff can prevent defendant from interposing a general denial in suits on promissory notes or bills of exchange, 31 and this even though verification of the answer be waived.32 A plea that denies the execution of the instrument, when required to be sworn to, if filed without affidavit, admits the execution of the instrument, but may be good for other purposes,33 unless an inspection of the original is refused. Unverified portions of the answer may be striken out, letting the verified part stand.35 The proper practice is to move to strike from the files, for judgment. on the pleadings, or for judgment by default, for want of answer, in case of non-verification of an answer required to be verified.3 26 In re Christensen Estate, 135 Cal. 674, 68 Pac. 112. 27 Tonopah Lumber Co. v. Riley (Nev.), 95 Pac. 1001. 28 Marx v. Raley & Co., 6 Cal. App. 479, 92 Pac. 519. 29 California Packers' Co. v. Merritt Fruit Co., 6 Cal. App. 507, 92 Pac. 509. 30 Newsom v. Woollacott, 5 Cal. App. 722, 91 Pac. 347. 31 Brooks v. Chilton, 6 Cal. 640. 82 Harney v. Porter, 62 Cal. 511. 34 83 Cal. Code Civ. Proc., § 447; Horn v. Volcano Water Co., 13 Cal. 62, 73 Am. Dec. 569; Sacramento County v. Bird, 31 Cal. 73; Corcoran v. Doll, 32 Cal. 88; Burnett v. Stearns, 33 Cal. 473. 34 Cal. Code Civ. Proc., § 449. 85 Nichols v. Jones, 14 Colo. 61, 23 Pac. 89. 36 Hearst v. Hart, 128 Cal. 327, 60 Pac. 846; Drum v. Whiting, 9 Cal. 422; McCullough v. Clark, 41 Cal. 298; Speer v. Craig, 16 Colo. 478, 27 Pac. 891. § 158. Verification of the answer.-When the complaint is verified the answer must be verified also, or it may, upon motion, be stricken from the files, except when an admission of the truth of the complaint might subject the party to prosecution for felony or misdemeanor,37 unless such prosecution is barred by the statute of limitations.38 And defendant may show by affidavits that such admissions would subject him to such prosecution, if it does not appear from the pleadings themselves.39 Also, if defendant would be excused from testifying as a witness to the truth of any matter denied by the answer, he need not verify the answer. Mere charge of fraud in making an assignment does not excuse defendant from verifying his answer. A verified answer which in any part contains a distinct denial of a fact material to plaintiff's recovery cannot, whatever its defects, be treated as a nullity, so as to entitle plaintiff to a judgment on the pleadings.2 The answer may be verified though the complaint is not.43 Where in mandamus, the answer was not verified as required, and respondent, upon his attention being called to the fact, made no application to amend, the answer cannot be regarded as controverting the facts stated in the petition." 41 § 159. Answer in condemnation suit.-In condemnation proceedings by the county the answer need not be verified, plaintiff not being either the state or an officer of the state in official capacity.45 § 160. Answer in tax suits. The acts in relation to the collection of delinquent taxes which compel the defendant to verify his answer do not change the rule that where a complaint is not verified a general denial of its allegations in the answer will put in issue all the material allegations.* 37 Cal. Code Civ. Proc., § 446; Drum v. Whiting, 9 Cal. 422; Wheeler v. Dixon, 14 How. Pr. 151; Anable v. Anable, 24 How. Pr. 92. 38 Henry v. Salina Bk., 1 Comst. 86. 39 Scoville v. New, 12 How. Pr. 319; Blaisdell v. Raymond, 5 Abb. Pr. 144. 40 Drum v. Whiting, 9 Cal. 422. 422. 42 Ghirardelli V. McDermott, 22 Cal. 539. 43 Porter v. Bichard, 1 Ariz. 87, 25 Pac. 530. 44 People v. District Court, 33 Colo. 77, 79 Pac. 1014. 45 Monterey v. Cushing, 83 Cal. 507, 23 Pac. 700; San Francisco v. Itsell, 80 Cal. 60, 22 Pac. 74. 46 Cal. Code Civ. Proc., § 437. § 161. When verification may be made.-Defendant may be allowed to verify his answer before or at the time of trial;48 but inability of counsel to obtain defendant's verification in time will not prevent the granting of a motion to strike out the answer for want of such verification." Or plaintiff may proceed as if no answer were filed to his verified complaint, and ask for judgment.50 If plaintiff goes to trial on the merits without objecting to the nonverification of the answer, he will not be allowed to raise the point in the appellate court.51 And where the parties took depositions under the pleadings and went to trial, and plaintiff, at the close of his evidence, for the first time brought up an error in the verification of defendant's answer, the court should allow defendant to then verify his answer, and not grant a judgment by default.52 § 162. Form and venue. As to the form of affidavit of verification, it has been held both that it must, and again that it need not, contain the venue, the jurat, and the signature or mark of the affiant. At any rate these are technical objections, and should be raised first in the lower court.53 So, also, a pleading in the form of an affidavit, without a separate verification, has been held,5* and denied, to be a verified pleading.55 The party's attorney, being a notary also, may take the verification.56 The verification should be subscribed by the party making it,57 and such subscription may be considered sufficient subscription to the complaint,58 and it is defective if neither is subscribed.50 § 163. Sufficient and defective verification.-A verification is sufficient if it conforms substantially to the statute.60 An error 48 Angier v. Masterson, 6 Cal. 61; Arrington v. Tupper, 10 Cal. 464; Lattimer v. Ryan, 20 Cal. 628. 49 Drum v. Whiting, 9 Cal. 422. 50 Strout v. Curran, 7 How. Pr. 36; McCullough v. Clark, 41 Cal. 298. 51 McCullough v. Clark, 41 Cal. 298; San Francisco v. Itsell, 80 Cal. 57, 22 Pac. 74; Nichols v. Jones, 14 Colo. 61, 23 Pac. 89; Speer v. Craig, 16 Colo. 478, 27 Pac. 891. 62 Arrington v. Tupper, 10 Cal. 464; Lattimer v. Ryan, 20 Cal. 628. 53 Kuhland v. Sedgwick, 17 Cal. 123. 54. 54 Garretson v. Board etc., 61 Cal. 55 Woods v. Varnum, 85 Cal. 640, 24 Pac. 843. 56 Kuhland v. Sedgwick, 17 Cal. 123. 57 Laimbeer v. Allen, 2 Sandf. 648, 2 Code Rep. (N. Y.), 15. 58 Hubbell v. Livingston, 1 Code Rep. (N. Y.), 63. 59 Laimbeer v. Allen, 2 Sandf. 648, 2 Code Rep. (N. Y.) 15. 60 Ely v. Frisbie, 17 Cal. 250; Kirk v. Rhoads, 46 Cal. 399; Perras v. Denver & R. G. R. Co., 5 Colo. App. 21, 36 Pac. 637. in dating the verification may be corrected by parol testimony, and will not affect the validity of the claim.61 The verification is no part of the complaint, and cannot render it defective. A defect in the verification merely relieves defendant from verifying his answer, unless it is an action in which verification is specifically required, when it should be attacked by motion to strike out instead of by demurrer. Filing of answer waives any defective verification not attacked in the answer, or prior thereto. Statement that matters set forth in the foregoing answer are true is equivalent to statement that the foregoing answer is true. 63 65 66 § 164. By guardian.-In an action by an infant appearing by a guardian ad litem, the complaint may properly be verified by the guardian, and he need not do so as the agent or attorney for the infant, but may as the plaintiff." § 165. By attorney or agent.-A pleading must be verified. by the affidavit of one of the parties, 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 the attorney or other person verifying the same. When verified by attorney, or any other person, except one of the parties, he must set forth in the affidavit the reasons why it is not made by one of the parties, and statement that the attorney resided in the county, and plaintiffs are absent from the county, is sufficient in itself, or that claimant is a corporation and none of its officers reside in the county.70 Such verification by an agent must disclose the nature of the agency," but it is not necessary to verify by the agent who knows most about the matter.72 69 68 And when the party is not within the county where the attorney resides, a verification made by the attorney is good, though he 66 Fleming v. Wells, 65 Cal. 336, 4 Pac. 197; Cady v. Case, 11 Wash. 124, 39 Pac. 375. 67 Anable v. Anable, 24 How. Pr. 92 68 Cal. Code Civ. Proc., § 446. 69 Stephens v. Parrish, 83 Cal. 561, 23 Pac. 797. 70 Empire St. Min. Co. v. Mitchell, 29 Mont. 55, 74 Pac. 81. 71 Boston Locomotive Wright, 15 How. Pr. 253. Works V. 72 Drevert v. Appsert, 2 Abb. Pr. 165. 73 have no personal knowledge of the truth of the allegations,' although it appears that the client has a resident agent through whom the attorney has obtained his information." Under the California code it is not necessary that the attorney or agent state his grounds of belief, but in Oregon he must.75 If the attorney can only verify by reason of fact that he has personal knowledge of the facts, his verification must be from such facts. and not from information and belief." Merely that the facts are more fully known to the attorney than to defendant is not sufficient." 70 § 166. By one of several parties. One of several plaintiffs may verify,78 but in certain cases it has been held that where the action is joint, the parties should unite in the verification. And in an action against husband and wife, where her interest is separate, the answer must be verified by both, if relied on as the answer of both.80 But their joint claim against a city for damages. need be verified by only one of them.81 § 167. By an officer of a corporation.-A verification made by an officer or manager of a corporation is a verification of the corporation and need not state the grounds of belief or source of knowledge.82 The statutes do not require an affidavit of a higher degree than could be made on the part of the officer from whom it is demanded.83 When a corporation is a party, the verification may be made by any officer thereof, and affiant's mere statement that he is vice-president of the corporation is sufficient.85 84 § 168. On information and belief.-There seems to be no reason why the California statute prescribes that the verification 73 Humphreys v. McCall, 9 Cal. 59, 70 Am. Dec. 621; Ely v. Frisbie, 17 Cal. 250; Patterson v. Ely, 19 Cal. 28. 74 Drevert v. Appsert, 2 Abb. Pr. 165. 75 Or. B. & C. Codes, § 79. 76 Silcox v. Lang, 78 Cal. 118, 20 Pac. 297; Columbia S. Co. v. Warner L. Co., 138 Cal. 445, 71 Pac. 498. 77 Silcox v. Lang, 78 Cal. 118, 20 Pac. 297; Jones v. Kruse, 138 Cal. .613, 72 Pac. 146. 78 Patterson v. Ely, 19 Cal. 28; Claiborne v. Castle, 98 Cal. 30, 32 Pac. 807; Butterfield v. Graves, 138 Cal. 155, 71 Pac. 510. 79 Andrews v. Storms, 5 Sandf. 609; Hull v. Ball, 14 How. Pr. 305. 80 Youngs v. Seely, 12 How. Pr. 395. 81 McLeod v. City of Spokane, 26 Wash. 346, 67 Pac. 74. 82 Glaubensklee v. Hamburg etc. Packet Co., 9 Abb. Pr. 104. Compare Anable v. Anable, 24 How. Pr. 92. 83 Bank of British North America v. Madison, 99 Cal. 129, 33 Pac. 762. 84 Cal. Code Civ. Proc., § 446. 85 In re Close, 106 Cal. 574, 39 Pac. 1067. |