Jackson v. Petrie & McFarland

O’NIELL, C. J. The writ of review in this case was granted at'the instance of the defendant, firm of Petrie & McFarland. The respondents have filed a motion to rescind the order because the petition for the writ was not verified by the oath of either member of the defendant firm, but by the oath of one of the attorneys for the firm. It is contended by the respondents’ attorneys that the statute on the subject, section 2 of Act' 191 of 1898,' p. 437, requires that a petition for a writ of review shall be verified by the affidavit of the' petitioner, unless he be absent from - the' parish in which the'judgment sought to be reviewed was rendered, in which event the petition may be verified by the affidavit of the attorney, provided he swears to the absence of his client. All that the statute requires, in that respect, is “the petition shall' be sworn to.” ' The rule of court first' adopted with reference to Act 191 of 1898, being an addition to'rule XII, adopted June 30,'1898, *595 required merely that a petition for a writ of review should be accompanied by an affidavit that the notification required by the rule had been filed in the office of the clerk of the court of appeal. See addition to rule 12, 50 La. Ann. xxxv . When the Rules of Court were revised, March 15, 1915, section 2 of rule 16 required that a petition for a writ of review should be verified by the affidavit of the petitioner, or, in case of his absence from the parish in which the judgment complained of was rendered, then by the affidavit of his attorney, provided such affidavit showed the absence of the petitioner from the parish. It was under that rule that it was held, in the cases cited by counsel for the plaintiff in this case, that the affidavit of the attorney for a petitioner for a . writ of review would not suffice unless the attorney swore that the petitioner was absent from the parish in which the judgment complained of was rendered, viz.: Landry & Son v. Labarre, 125 La. 714 , 51 So. 697 ; North British & Mercantile Insurance Co. v. Sims, 132 La. 411 , 61 So. 509 ; Landry v. Poirrier, 135 La. 731 , 66 So. 163 ; Stubbs v. Fleming, 135 La. 796 , 66 So. 225 ; Haas v. Opelousas-St. Landry Bank & Trust Co., 167 La. 537 , 119 So. 700 . In the latest revision of the Rules of Court, January 2, 1931, it was observed that the rule pertaining to the verification of a petition for a writ of review was more rigorous than the statute required it to be, and that, inasmuch as such petitions are based upon the record and upon propositions of law, there would be no necessity for the petition to be sworn to, if the statute did not require it, except perhaps to show that notice was given to the opposing party or parties. Hence section 5 of rule 13, 171 La; xiii, now requires merely: “A petition for a writ of review, under the provisions of section 2 of Act 191 of 1898, p. 437, shall be verified by the affidavit of the petitioner or his attorney.” It is not necessary now that the petitioner should be absent, in order that his attorney shall have authority to verify a petition for a writ of review. It is contended by counsel for the respondents in this- case that the new rule on the subject is not consistent with the statute; but our opinion is that the new rule is more consistent with the statute than the original rule was. The statute, by requiring merely that a petition for a writ of review “shall be sworn to,” leaves it largely within the discretion of the court as to how the petition shall be verified, or “sworn to.” The motion to rescind the order for the writ of review is therefore overruled.