Ruch v. Jones

Affidavit. — The answer of several co-defendants answering jointly is sufficiently verified by the affidavit of one of them. (R. C. 1855, p. 1254, § 20.) Answer — Default.—It is erroneous to take a judgment by default, when an answer is on file, whether verified by affidavit or not; after the answer has been stricken out, a default may be taken.

Appeal from St. Louis Lazo Commissioner’s Court. This was a suit instituted in the Law Commissioner’s Court on an account for painting and glazing. The defendant Jones in the petition is charged as the debt- or, and the defendant Saugrain as the owner, of the ground or property sought to be charged with the lien of demand. The answer is a joint answer of both defendants, and puts in issue the indebtedness of defendant Jones to plaintiff and the allegation of notice to defendant Saugrain of plaintiff’s demand prior to filing lien. The answer was sworn to by defendant Jones. Upon this answer, at the trial, the plaintiff moved the court to render j udgment as of nil dicit against defendant Saugrain, for the reason, as set forth in the motion, that said defendant Saugrain had never made any answer in the cause verified by affidavit of himself, his attorney or agent. "Which motion the court sustained, and, proceeding to try the cause, rendered said judgment against defendant Jones for the debts, and a special judgment against the property of defendant Saugrain to enforce collection of same. The record shows that there was no proof made of any notice to defendant Saugrain of the demand of plaintiff, prior to filing same, for purposes of securing a lien.