H. G. Bittleston Law & Collection Agency v. Howard

This is an action brought by the plaintiff corporation against the defendant for an alleged breach of *Page 358 two agreements in writing whereby the defendant employed R.W. Kinsey, the plaintiff's assignor, as her agent, for the purpose of securing certain loans on real property in the county of Los Angeles, and for the securing of which loans she agreed to pay the said R.W. Kinsey commissions amounting to $342. The said agreements are set forth in two counts in the amended complaint, which purports to be verified by the said R.W. Kinsey. A demurrer was interposed by the defendant to the amended complaint and overruled, whereupon the defendant served and filed an unverified answer in the form of a general denial. The plaintiff moved the court for judgment on the pleadings on the ground that the unverified answer to the verified complaint constituted no defense to the cause of action or any portion thereof. The motion was granted and judgment was entered on the pleadings as prayed for. Defendant appeals.

The sole question presented is whether the amended complaint was properly verified. It is contended, "that the affidavit of verification to the complaint herein and relied upon by the plaintiff upon such motion, is not such an affidavit as to make the complaint a verified pleading within the provisions of section 446 of the Code of Civil Procedure, and was therefore an unverified complaint to which an unverified answer and a general denial is permitted (Code Civ. Proc., sec. 437)." "In this case," says the appellant, "although the affidavit is made by a person who is not a party to the action, it does not state that the facts are 'within the knowledge' of the person verifying, nor does the affidavit set forth the reasons why it is not made by the party."

The affidavit is not open to either of these objections.

Section 446 of the Code of Civil Procedure provides: "Every pleading must be subscribed by the party or his attorney. . . . 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 herein 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 has his office, or from some cause 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 *Page 359 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. When a corporation is a party, the verification may be made by any officer thereof. . . . " The affidavit of verification is as follows: