Drum v. Whiting — 9 Cal. 422

Majority

p. 422

DRUM v. WHITING.

Headnote

In all cases not within the exception of the statute, an answer without a verification to a complaint duly verified; may bé stricken "out on motion,; and application'for judgment, as upon a default, may be made at the same time.

Inability of counsel to-obtain defendant’s verification in (time, may=be good ground for 2 an extension of time to answer, but cannot avail in resisting a motion to strike out and for judgment after the answer is filed. '/ f

Appeal from-the District Court of the-Tenth Judicial District* County of Yuba. ■- -- '■■ ■ >

The facts appear in the opinion of the Court.- -1

p. 423

Bryan & Filkins for Appellant.

I. S. & W. C. Belcher for Respondent.

The. original and amended complaints.filed,in this action were both .duly verified under section. flfty:qne, off the Practice ¡ Act. The answer "of the defendant was unaccompanied with any verification, and" on motion, was for,",this reason stricken out, and judgment ordered for the plaintiff as.upon a default. From the judgment, the defendant appealed, and now, assigns, the ruling on this motion as error. ,

, " The only reason offered Tor want of , a verification, was the residence of the.defendant .in,another county, at a great, distance from the place of trial, and consequent inability of counsel to obtain, his affidavit at the time it .became necessary-to file the answer. This reason ..might have, been sufficient ground for an extension, by the. Qourt,.,of the time to answer, but could be of no‘avail'in resisting the motion after the, answer was filed- The language of the statute is imperative, and mak.es only.one exception in which the verification of an answer maybe omitted when the complaint has been duly verified., .and that is,.when the. adinission of the truth of the complaint might subject-the party to a.; p.fosécution for a -felony.,, .(Practice Act) - §§ 51, 52.) In all other cases, an answer,, withput a verification to .a complaint duly verified, may be stricken out, on motion; and application for judgment,; as upon a default, may be.made at the same time. (Strout et al. v. Curran, 7 Howard’s. Pr.aptice Éepprts, 3,6.)

Judgment affirmed, with five per cent, damages.