H. G. Bittleston Law & Collection Agency v. Howard ( 1916 )

I concur in the judgment. The affidavit shows that the facts were within the knowledge of the affiant Kinsey. He declares "that he has read the foregoing complaint and knows the contents thereof and that the same is true of his own knowledge. . . . " The statement that facts are true of one's own knowledge necessarily imports that the facts are within his knowledge. The added words "except as to matters which are therein stated as to information and belief" do not qualify the positive character of the verification, since the pleading contains no averments on information and belief. The verification, therefore, fully meets the provision of section446 of the Code of Civil Procedure, allowing a person not a party to verify where the facts are within his knowledge.

I am, however, unable to see any distinction in this respect between the case at bar and Silcox v. Lang, 78 Cal. 118, [20 P. 297]. The verification which was there held to be insufficient was in the same form as the one before us. There is nothing in the report of the Silcox case to show that the pleading there in question contained any allegation on information and belief. I think, therefore, that Silcox v. Lang, should, so far as it touches the point under discussion, be distinctly and unequivocally overruled.

I agree to the view that the affidavit contains a sufficient statement of the reasons why it is not made by one of the parties.