Yazoo Delta Mortgage Co. v. Harlow , 145 Miss. 221 ( 1926 )

^* Corpus Juris-Cyc. References: Pleading, 31Cyc, p. 541, n. 38; p. 547, n. 94. The appellant was plaintiff in the court below, and brought suit upon a note given to the Planters' Bank by the defendants for the sum of eleven thousand six hundred thirty-nine dollars, and fifteen cents, upon which certain payments had been made.

There were numerous pleas filed by the defendants, one of which was that the plaintiff did not own the note sued upon, and had not the legal title thereto, said plea, in full reading as follows:

"Now come the defendants, J.H. Johnson, Earl Brewer, Ed Brewer, E.J. Mullens, Jr., W.B. Nichols, and S.A. Corley, and, for further plea, say that the plaintiff should not have and maintain its aforesaid action against them in the manner and form as the plaintiff has in its declaration alleged because they say that the plaintiff is not the present owner of the promissory note herein sued upon and has not the legal title thereto. And of this they put themselves upon the country.

"BREWER, BREWER McGEHEE.

"Sworn to and subscribed before me on this May 18, 1926.

"[Seal.] R.A. MYERS, Clerk."

As to all of the pleas of defendants, issue in short by consent was taken, and plaintiff introduced the note in evidence, and introduced an attorney to prove what a reasonable fee would be for collection of the note under its terms, and then rested its case.

Thereupon the defendants moved to exclude the evidence introduced by the plaintiff, and to direct the jury to return a verdict for the defendants upon the ground that ownership of the note by plaintiff is denied under oath, and, that being true, that it was cast upon the plaintiff to prove ownership of the note, which motion was sustained by the court, and exceptions taken.

The attorney for plaintiff then requested the court to allow them to reopen the case and make proof of ownership of the note, which the court refused to do, to which rulings exceptions were taken.

This motion was followed by entry of judgment for defendants, from which this appeal is prosecuted.

It is contended by the appellants that the above plea amounted to no more than the general issue, and that it was not sworn to properly because it does not show that any particular person made oath thereto, and does not show upon whose knowledge or information the plea was sworn to. It is further contended that, even if the plea was properly sworn to, the court abused its discretion in refusing to reopen the case and allow the plaintiff to make proof of ownership of the note, which would have required only a few minutes of time and would have occasioned no delay.

Section 1634, Hemingway's Code (section 1974, Code of 1906), reads as follows:

"In suits founded on any written instrument set forth in the pleading, it shall not be necessary to prove the signature or execution thereof, unless the same be specially denied by a plea, verified by the oath of the party pleading the same; and it shall not be necessary in any case to prove any written signature, the execution of any instrument, or the identity or names of persons, or description of character, or the persons composing any firm or partnership which may be set forth in the pleadings, unless the same be specially denied by plea, verified by oath. And the like rule shall prevail, as far as may be applicable, in all cases where any writing is pleaded or set up by the defendant, or any signature, identity, or names of persons, description of character, or partnership set forth in his pleading."

It appears from this section that it is not necessary for plaintiff to prove its ownership of the note and the character in which it sues, unless same be denied specifically by plea, verified by oath. If the plea so denies under oath, then it devolves upon the plaintiff to prove its title thereto.

It will be noted from reading the above plea that there is no certificate by any officer that any particular person appeared before him and was duly sworn, nor what such person deposed to.

The plea is signed by a firm name, carrying three names, and several of the defendants are named in the body of the plea. Just who made the affidavit, if any one, is not apparent from the pleading or the certificate of the officer.

Where the affidavit is in due form and recites that a named person appeared before an officer and was duly sworn, such affidavit is not void because not signed by affiant; the certificate of the officer showing who appeared before him, to whom the oath was administered, and what affiant deposed to.

Where an oath is made in a case under section 731, Hemingway's Code (section 1011, Code of 1906), the affidavit should show whether the affiant deposed of his own knowledge, or upon the knowledge in the mind of his clients and, if the latter, must depose he verily believes such information is true. Downing v.Campbell, 131 Miss. 137, 95 So. 312, and authorities cited in that opinion.

We are of opinion that the plea was not properly sworn to, so as to bring it within the purview of the section above referred to, and, that being true, the court erred in granting the peremptory instruction, for which the judgment will be reversed, and the cause remanded.

Reversed and remanded.