Burgess & Co. v. Martin , 111 Ala. 656 ( 1895 )

McCLELLAN, J.

The abstract shows that there was a submission to the chancellor ‘ ‘upon demurrer, and other pleadings, and the testimony as condensed above,” and that subsequently the chancellor rendered a decree ‘‘overruling demurrers 1, 2, 3, and 10, and sustaining those from 4 to 9, inclusive ; and sustaining the appeal [from the register’s order appointing a receiver] and discharging the receiver.” The abstract nowhere and in no way informs us what specifications of demurrer were set forth in assignments of demurrer “from 4 to 9 inclusive and we are, therefore, unable to review the decree sustaining said assignments. — O’Neil v. Simonton, 109 Ala. 369.

It is shown, however, that one ground, of demurrer was that the bill, which sought discovery, appointment of receiver &c. &c., was not properly verified. We are not advised whether this assignment was among those numbered from 4 to.9, nor what the action of the court was upon it. But we deem it not improper to say that this objection to the bill is well taken. The allegations of the bill are sworn to by a person named “as true to the best of his knowledge, information and belief.” This, upon the construction most favorable to complainants, means that the affiant has knowledge that some of the averments of the bill are true, that while he does not know he has been informed and believes that others of the averments are true and that, as to yet other averments, he has neither knowledge nor information, but, without knowing the facts or ever having been informed of their truth, he believes them to be true ; and whether any particular allegation of the bill is within one or the other of these three categories is wholly uncertain and unascertainable from this verification. But to construe the affidavit according to the general rule, most unfavorable to the party relying upon it, there is no room for affirmatively saying that it means anything more than the affiant believes the allegations of the bill to be true, though he has neither knowledge nor information of their their truth. — Pickle’s Adm’r. v. Ezzell, 27 Ala. 623; Dennis v. Coker, 34 Ala. 611; Globe Iron Roofing & Corrugating Co. v. Thacher, 87 Ala. 458.

As said by counsel for appellant, it is quite true that it is frequently necessary, especially in bills for discovery, as this one is, to aver facts “upon information and belief.” This is not to say, however, that an averment upon either information or belief would be good. The form of the averment is that complainant has been informed and believes and upon such information and belief charges the fact to be&c. &c., and-whether the allegations intended to be verified are made positively or upon information and belief, an affidavit of belief in their truth simply amounts to nothing. When the averment is positive the verification „ should be so. When it is upon information and belief, the verification should embrace both the facts that the affiant has been informed and believes them to be true, either in terms or by affirming positively that the facts aUeged in the bill are true ás therein stated.

The present bill not being verified, we do not think it affords any evidence to be looked to in reviewing the action of the chancellor whereby the appeal of respondent from the register’s order appointing a receiver was sustained and the receiver discharged; and considering only the affidavits pro and eon of witnesses filed on the hearing of that appeal, the court is of the opinion that they do not sustain the averments qf the bill nor show facts justifying the appointment of a receiver. The decree of the chancellor discharging the receiver is therefore affirmed. ’ -

Affirmed.