Opinion
7 Div. 558.
February 6, 1964. Rehearing Denied September 10, 1964.
Appeal from the Circuit Court, Calhoun County, W. D. DeBardelaben, J.
Burnham Klinefelter and Robt. C. Dillon, Anniston, for appellant.
The verification of the claim is in substantial compliance with the statute. Code 1940, Tit. 37, § 504; City of Birmingham v. Hornsby, 242 Ala. 403, 6 So.2d 884; Cole v. City of Birmingham, 243 Ala. 561, 11 So.2d 148; Tolbert v. City of Birmingham, 262 Ala. 674, 81 So.2d 336, 63 A.L.R.2d 901.
Emerson Watson, Anniston, for appellee.
The claim or statement for personal injury received required to be filed with the clerk of a city must be sworn to, and a verification that a statement is true to the best of one's knowledge, information, and belief is insufficient. City of Birmingham v. Edwards, 201 Ala. 251, 77 So. 841; Code, Tit. 37, § 504; Pickle's Adm'r v. Ezzell, 27 Ala. 623; Dennis v. Coker's Adm'r, 34 Ala. 611; Globe Iron Roofing and Corrugating Co. v. Thacher, 87 Ala. 458, 6 So. 366; Florence Bldg. Inv. Ass'n v. Schall, 107 Ala. 531, 18 So. 108; Burgess Co. v. Martin, 111 Ala. 656, 20 So. 506; Pollard v. Southern Fertilizer Co., 122 Ala. 409, 25 So. 169; Smothers v. Meridian Fertilizer Factory, 137 Ala. 166, 33 So. 898; Ellis v. Drake, 203 Ala. 457, 83 So. 281; Johnson v. Stocks, 207 Ala. 345, 92 So. 457; Petchey v. Allendale Land Co., 216 Ala. 167, 112 So. 818; Fowler v. Johnson, 235 Ala. 524, 180 So. 312; Brooks v. Everett, 271 Ala. 380, 124 So.2d 100.
The affidavit to the claim filed by plaintiff with the city is as follows:
"STATE OF ALABAMA } CALHOUN COUNTY }
"Before me, the undersigned notary public in and for said State and County personally appeared GRETCHEN FOREMAN, who being by me first duly sworn according to law did depose and say that she is the claimant in the above claim against the City of Anniston, and that the allegations set out therein are true to the best of her knowledge, information and belief.
/s/ Gretchen Foreman /t/ Gretchen Foreman
"Sworn to and subscribed before me on this 18th day of July, 1960.
(Notary Seal) /s/ H. R. Burnham Notary Public."
The verification of the claim filed with the city is sufficient. City of Anniston v. Rosser, 275 Ala. 659, 158 So.2d 99.
The court erred in sustaining objection to introduction of the claim in evidence.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON, MERRILL, and HARWOOD, JJ., concur.
LAWSON, GOODWYN, and COLEMAN, JJ., dissent.
The single assignment of error is that the court erred in sustaining objection to introduction in evidence of the sworn statement of claim filed by plaintiff with the city clerk as required by § 504, Title 37, Code 1940.
The objection urged by defendant is that the verification of the claim is insufficient in that the verification is made merely to the best of affiant's knowledge, information, and belief.
The reason why such an attempted verification is no verification at all is clearly stated in Burgess Company v. Martin, 111 Ala. 656, 20 So. 506. This rule, without exception, so far as I am advised, has been followed by this court for more than a century in an unbroken line of decisions. Pickle's Adm'r v. Ezzell, 27 Ala. 623; Dennis v. Coker's Adm'r, 34 Ala. 611 : Globe Iron Roofing and Corrugating Co. v. Thatcher, 87 Ala. 458, 6 So. 366: Florence Building Investment Ass'n v. Schall, 107 Ala. 531, 18 So. 108; Pollard, Assignee, v. Southern Fertilizer Company, 122 Ala. 409, 25 So. 169; Smothers v. Meridian Fertilizer Factory, 137 Ala. 166, 33 So. 898; Ellis v. Drake, 203 Ala. 457, 83 So. 281; Johnson v. Stocks, 207 Ala. 345, 92 So. 457; Petchey v. Allendale Land Co., 216 Ala. 167, 112 So. 818; Fowler v. Johnson, 235 Ala. 524, 180 So. 312; Brooks v. Everett, 271 Ala. 380, 124 So.2d 100.
The legislature has declared that "a sworn statement" shall be filed with the clerk. § 504, Title 37, Code 1940. As I understand the majority holding in the instant case, this court now declares that a statement, which this court has heretofore uniformly held not to be a sworn statement, is sufficient.
Being of the view that the instant verification is insufficient under the rule previously adhered to by this court, I dissent.
LAWSON and GOODWYN, JJ., concur.