Kinchen v. Redmond

On Motion to Dismiss.

DAWKINS, J.

Counsel for defendants, respondents in this application, has moved to dismiss the appeal for the reason that the affidavit made by D. B. Kinchen, one of the plaintiffs, was “that all the allegations of fact therein contained are true and correct to the best of affiants’ Icnotoledge and belief.” (Italics ours.)

Section 2 of rule XVI of this court provides :

“Section 2. The petition for the writ of certiorari or review to a Court of Appeal shall be verified by the affidavit of the petitioner, or, in case of his absence from the parish in which the judgment sought to be reviewed was rendered, then by his attorney; and the fact of such absence shall be shown by the affidavit, which shall also show that an application for rehearing has been made to such Court of Appeal; that the rehearing has been refused; with the date of the refusal, and, that the applicant has filed in the clerk’s office of such court, a no’tice addressed to the parties to the suit, of his intention to make the application to this court; and the petition shall be accompanied by an assignment of the errors complained of, by copies of the original petition and answer and other pleadings to which the application may relate, of the reasons assigned by the Court of Appeal for its judgment, of the petition for rehearing and brief in support thereof, and of the reasons, if any there be, for, and the judgment, refusing the rehearing.”

While it would be better for the applicant in all cases to swear that, the allegations of fact set forth in his petition “are true and correct,” yet in this particular case he has attached to the application for certiorari certified copies which show that the application for rehearing was made, that it had been refused; the date of its refusal, and that the applicant filed with the clerk notice of intention to make said application. We think this supplied sufficient evidence, when considered in connection with the affidavit as made, to show that the law and rule of this court have been complied with. The motion to dismiss is therefore denied.