Bingham v. Hill , 38 Ohio St. (N.S.) 657 ( 1883 )

Johnson, J.

I. As to the verification of the petition. It is in due form, and properly sworn to. If it is defective, it is because the affidavit, in addition to the proper averment, as a verification, contains additional allegations to entitle the affiant to an order of delivery also.

As a verification this additional matter may be regarded as surplusage. It does not vitiate.

II. It is said there is no affidavit which entitles the plaintiff to -an order of delivery. It is conceded that the affidavit filed, contains all the necessary statements to authorize the issue of an order of delivery, but the claim is, there should be a separate affidavit, and that one affidavit, which is good both as a verification and for an order of delivery, renders the process issued thereon void. This is the better practice, and a departure should not be encouraged. Here, however, the petition is good in form and substance, and the affidavit contains all the facts, and is in due form necessary to a verification, and also such additional facts as are required to entitle the plaintiff to an order of delivery. It is properly sworn to. This departure from the better practice is in a matter of form and not of substance. There is no substantial error to the prejudice of the plaintiff in error, which will authorize or warrant a reversal Rev. Stat. § 5115.

Judgment affirmed.