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Carroll v. McMillan

Supreme Court of North Carolina
Oct 1, 1903
45 S.E. 530 (N.C. 1903)

Opinion

(Filed 15 October, 1903.)

Pleadings — Verification — The Code, Sec. 258.

The verification of pleadings must state that the same are true to the knowledge of the affiant, except as to those matters stated on information and belief, and as to those matters he believes the same to be true.

ACTION by S. Carroll against D. J. McMillan and others, heard by Peebles, J., at March Term, 1903, of PENDER. From a judgment for the defendants, the plaintiff appealed.

Rountree Carr and J. T. Bland for plaintiff.

Stevens, Beasley Weeks for defendants.


Plaintiff in this action filed his complaint, duly verified. Defendants filed their answer, in which, among other things, they set forth new matter, constituting a counterclaim. The verification (141) of the answer is in the following form: "That he has read the foregoing answer and knows the contents thereof; that the facts set forth therein of his own knowledge are true, and that those stated on information and belief he believes to be true." At March Term, 1903, of Pender Superior Court, the case was called for trial. Defendants moved for judgment on the counterclaim set up in the answer, for that no reply had been filed thereto by the plaintiff. This action on the part of the defendants was met by a motion on the part of the plaintiff for judgment on the complaint for that the answer was not verified as required by The Code. The court denied the plaintiff's motion and rendered judgment for the defendants. Plaintiff excepted.

There is error. The answer was not verified in accordance with section 258 of The Code, as construed by this Court in Phifer v. Ins. Co., 123 N.C. 410. The verification of the answer is in almost the identical language as that used in Phifer's case, which, for the reasons pointed out by the Court, was held insufficient. Clark's Code, sec. 258, and cases cited. Unless the defendants shall obtain leave from the court to amend their verification so that it may conform to the provisions of The Code, the plaintiff will be entitled to judgment by default and inquiry. As the cause goes back for further proceedings, it will be within the discretion of the judge to permit the amendment and to permit plaintiff to file a reply to the counterclaim, that the parties may proceed to the trial of the matters in controversy.

Error.

Cited: Streator v. Streator, 145 N.C. 338; Miller v. Curl, 162 N.C. 4.

(142)


Summaries of

Carroll v. McMillan

Supreme Court of North Carolina
Oct 1, 1903
45 S.E. 530 (N.C. 1903)
Case details for

Carroll v. McMillan

Case Details

Full title:CARROLL v. McMILLAN

Court:Supreme Court of North Carolina

Date published: Oct 1, 1903

Citations

45 S.E. 530 (N.C. 1903)
45 S.E. 530

Citing Cases

Streator v. Streator

The point is so fully discussed and clearly stated by Walker, J., in Avery v. Stewart, 136 N.C. 432, as to…

Miller v. Curl

This provision of the statute should, therefore, be at least substantially complied with. The verification in…