Fleming v. Wells

The Court. This appeal is from a judgment on the pleadings, for a delivery to plaintiff of the property mentioned in the complaint, or in case delivery cannot be had for two thousand three hundred and fifty dollars, its value, for five hundred and fifty dollars damages for the detention and costs, etc.

It is urged by respondent that the judgment should be affirmed because the verification of the answer is not such as is required by section 446 of the Code of Civil Procedure. But the record shows that when the answer was filed, there was attached thereto a verification, in words and figures following:

“ County of Tulare, ss.

“ M. J. Wells being duly sworn on oath, says that he is the defendant in this cause; that the matters set forth in the foregoing answer are true, except as to those matters therein stated on information or belief, and as to those matters that he believes them to be true. M. J. Wells.

“Subscribed and sworn to before me, this 28th day of January, 1882.

[seal.] “N. O. Bradley,

“ Notary Public.’*

[338]The Code does not require, when the answer is verified by the defendant, that he shall state in the affidavit that “ he has heard the foregoing answer read, and knows the contents thereof.” The statement, “ the matters set forth in the foregoing answer are true,” is the equivalent of a statement, “ the foregoing answer is true.” Section 446 requires him to state that “ the same ”—the answer—is true, except as to the matters which are therein stated on his information or belief, and as to those matters he believes it to be true.” The matters stated on information or belief are thus put in opposition to the rest of the answer, that is, to the matters stated positively. We think the verification sufficient.

The answer avers facts, fully and at large set forth, from which it appears that prior to the commencement of the present action, one Hawley commenced an action against the plaintiff herein and one Fowler, to recover the identical property described in the complaint herein. That in that action, upon proper affidavit, undertaking, and order of the attorney for plaintiff therein (which were forthwith served on the defendants therein), the present defendant, as sheriff, took said property from the defendants on the 12th day of ¡November, 1881. That on the 17th day of the same ¡November (the day after the present action was commenced), the plaintiff herein made affidavit for claim and delivery, and executed bond, which affidavit and bond (together with an order of the attorneys for plaintiff herein), were delivered to an elisor appointed by the court, by • whom the property was taken from the defendant herein, sheriff . as aforesaid. That afterwards, on the 22d of ¡November, 1881, defendant gave the undertaking provided for in such case by the Code, and demanded a return of the property of the elisor, whoon the same day delivered the property to the present defendant. That defendant, sheriff, thereupon delivered the property to Hawley, ■ the plaintiff in the action wherein plaintiff and Fowler were defendants. That afterwards, on . the 12th day of December, 1881, the plaintiff herein filed an answer in the action, wherein he and said Fowler were defendants, in which he demanded a return of the property therein and herein sued for. That the action, Hawley v. Fowler and Fleming, came on to be tried on the 21st of January, 1882, and at the conclusion of the evidence on the part of the plaintiff therein, the court, on motion of defend