Lumbard v. Zimmerman

By the Court,

In this cause the appellee, moves to dismiss the appeal, on the ground that the same has not been legally taken. < As appears by the return, Cae jurat is not signed, neither does the name or official character of the officer administering the oath appear in the body of what; is claimed as an affidavit. An affidavit is an oath reduced to writing, sworn before and attested by him who hath authority to minister the same. Bac. Abr., 124; 1 Mich. Nisi Prius, 189. The paper under consideration is not an affidavit. Let the cause be dismissed and the files remitted to the Justice, with a certified copy of this order.

In the foregoing case, after the above’ order was entered, ap*314plication was made to the Court for an order authorizing an appeal, in pursuance with the provisions of § 3842, G. L., which provides that “ Appeals may he authorized by the Circuit or District Court, after the expiration of five days, where the party making the appeal has been prevented from taking the same by circumstances not under his control.” The affidavit of the appellant, upon which this motion is predicated, alleges that he sigend and swore to an affidavit for' an appeal and filed the same with the Justice within the five days prescribed by law — that the justice administering the oath neglected to sign the jurat, which fact he had no knowledge of until the return was made to this Court.

The statute requires'the party appealing, within five days after the rdndition of judgment, to present to the Justice an affidavit made by himself, his agent, or attorney, before any person authorized to administer oaths, stating that such judgment is not in accordance with the just rights of such person, &c., G. L. § 3836.

It has been held, in some of the Circuits of this State, that a proper construction of this statute requires the person taking the appeal to see to it that his affidavit is complete and perfect before filing it with the Justice, and that if he files it without the jurat being signed, he should not be permitted to allege, afterwards, that such omission was a “ circumstance beyond his control.”

• In the case under consideration, the instrument designed as an affidavit was sworn to before the Justice who rendered the judgment.

The “ filing” of the affidavit, referred to in the statute concerning appeals, means, of course, nothing more than the delivery of the same to the Justice.

It is said it is the duty of the person taking the appeal, to mahe and file an affidavit, éso. But the affiant has no authority to sign the jurat; and inasmuch as the attestation is an essential part of the affidavit, it is clear that the only sensible construction of this requirement is that the appellant, his agent, or attorney, shall mahe and cause to be made an affidavit, unless *315prevented by circumstances not under his control. A man may, usually, control his own actions, but it is not always so easy to control others. In this case, the appellant delivered the paper, designed as an affidavit, to the Justice, at the time he signed and swore to it. He had no power to compel the Justice to sign theywrai, but had aright, on paying his fees, to believe he would do so immediately.

I think the omission of the Justice to attach his signature, was within the spirit, if not the letter of the statute, a circumstance not under the control of the appellant.

I do not now desire to intimate what would be the opinion of the Court, had the affidavit been sworn to before some other omeer and delivered to the appellant "without the jurat being signed, and by him delivered to the Justice, in that imperfect condition.

Let the order asked for be entered.

*316(,