Opinion
Appeal from the District Court of the Tenth Judicial District, County of Yuba.
COUNSEL:
Bryan & Filkins, for Appellant.
I. S. & W. C. Belcher, for Respondent.
JUDGES: Field, J., delivered the opinion of the Court. Terry, C. J., and Burnett, J., concurring.
OPINION
FIELD, Judge
The original and amended complaints filed in this action were both duly verified under section fifty-one of the Practice Act. The answer of the defendant was unaccompanied with any verification, and on motion, was for this reason stricken out, and judgment ordered for the plaintiff as upon a default. From the judgment, the defendant appealed, and now assigns the ruling on this motion as error.
The only reason offered for want of a verification, was the residence of the defendant in another county, at a great distance from the place of trial, and consequent inability of counsel to obtain his affidavit at the time it became necessary to file the answer. This reason might have been sufficient ground for an extension by the Court of the time to answer, but could be of no avail in resisting the motion after the answer was filed. The language of the statute is imperative, and makes only one exception in which the verification of an answer may be omitted when the complaint has been duly verified, and that is, when the admission of the truth of the complaint might subject the party to a prosecution for a felony. (Pr. Act, Secs. 51, 52.) In all other cases, an answer without a verification to a complaint duly verified, may be stricken out, on motion; and application for judgment, as upon a default, may be made at the same time. (Strout et al. v. Curran, 7 How. Pr. R. 36.)
Judgment affirmed, with five per cent. damages.