Carroll v. . McMillan , 133 N.C. 140 ( 1903 )

Plaintiff in this action filed his complaint, duly verified. Defendants filed their answer, in which, among other things, they set forth new matter, constituting a counterclaim. The verification (141) of the answer is in the following form: "That he has read the foregoing answer and knows the contents thereof; that the facts set forth therein of his own knowledge are true, and that those stated on information and belief he believes to be true." At March Term, 1903, of Pender Superior Court, the case was called for trial. Defendants moved for judgment on the counterclaim set up in the answer, for that no reply had been filed thereto by the plaintiff. This action on the part of the defendants was met by a motion on the part of the plaintiff for judgment on the complaint for that the answer was not verified as required by The Code. The court denied the plaintiff's motion and rendered judgment for the defendants. Plaintiff excepted.

There is error. The answer was not verified in accordance with section 258 of The Code, as construed by this Court in Phifer v. Ins. Co.,123 N.C. 410. The verification of the answer is in almost the identical language as that used in Phifer's case, which, for the reasons pointed out by the Court, was held insufficient. Clark's Code, sec. 258, and cases cited. Unless the defendants shall obtain leave from the court to amend their verification so that it may conform to the provisions of The Code, the plaintiff will be entitled to judgment by default and inquiry. As the cause goes back for further proceedings, it will be within the discretion of the judge to permit the amendment and to permit plaintiff to file a reply to the counterclaim, that the parties may proceed to the trial of the matters in controversy.

Error.

Cited: Streator v. Streator, 145 N.C. 338; Miller v. Curl, 162 N.C. 4.

(142)