AFFIDAVITS - AMERICAN JURISPRUDENCE SECTIONS 1 - 20 3 Am. Jur. 2d Affidavits § 1 American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. I. In General Topic Summary Correlation Table References § 1. Generally; definition Wests Key Number Digest Wests Key Number Digest, Affidavits 1 An affidavit is a voluntary[FN1] written statement[FN2] of fact[FN3] under oath[FN4] sworn to or affirmed by the person making it[FN5] before some person who has authority under the law to administer oaths[FN6] and officially certified to by the officer under his seal of office.[FN7] The proper function of an affidavit is to state facts, not conclusions.[FN8] It is made without notice to the adverse party and without opportunity to cross-examine.[FN9] There is a distinction between types of affidavits: some serve as evidence and advise court as it decides preliminary issues or determines substantial rights where evidence is not in conflict, while others merely serve to invoke judicial power and are pledges of good faith in commencement of suits.[FN10] No particular terminology is required to render a document an affidavit.[FN11] Definition: A verification is a type of statement given under oath where the declarant must not only refrain from making a knowingly false statement, but must also have affirmative knowledge of the statements truthfulness.[FN12] Practice Guide: The question of whether a document constitutes an affidavit is normally a question of law.[FN13] Observation: In some jurisdictions, matters that are supportable by affidavit are generally also supportable by a declaration under penalty of perjury, which is an unsworn statement subscribed to by the person making it and certified or declared to be true under penalty of perjury.[FN14] Furthermore, in particular jurisdictions, attorneys and certain specified medical professional persons are authorized by statute to serve an affirmation bearing the persons signature alone in lieu of and with the same force and effect as an affidavit.[FN15] In addition, some states provides for a professional statement which is statement of fact presented to the court by an attorney in connection with a matter then before such court, verified in effect by the oath of such attorney, and designed or calculated to aid or influence the court in the determination of a given cause or issue.[FN16] The attorneys professional statement has the effect of an affidavit.[FN17] CUMULATIVE SUPPLEMENT Cases: A valid declaration has the same force and effect as an affidavit administered under oath. Garcia v. Superior Court, 42 Cal. 4th 63, 63 Cal. Rptr. 3d 948, 163 P.3d 939 (2007). [END OF SUPPLEMENT] -------------------------------------------------------------------------------- [FN1] Otani v. District Court in and for Twenty-First Judicial Dist., 662 P.2d 1088 (Colo. 1983); Pappas v. State, 179 Ind. App. 547, 386 N.E.2d 718 (2d Dist. 1979); In re Murphy, 321 Mass. 206, 72 N.E.2d 413 (1947); Holmes v. Michigan Capital Medical Center, 242 Mich. App. 703, 620 N.W.2d 319 (2000), appeal denied, 636 N.W.2d 144 (Mich. 2001); State v. Haase, 247 Neb. 817, 530 N.W.2d 617 (1995); Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 708 A.2d 401 (1998); Torkelson v. Byrne, 68 N.D. 13, 276 N.W. 134, 113 A.L.R. 1213 (1937); Ackler v. Raymark Industries, Inc., 380 Pa. Super. 183, 551 A.2d 291 (1988); Collins v. Doe, 343 S.C. 119, 539 S.E.2d 62 (Ct. App. 2000), cert. granted, (May 23, 2001); Clay v. Portik, 84 Wash. App. 553, 929 P.2d 1132 (Div. 2 1997); Fugate v. Mayor and City Council of Town of Buffalo, 348 P.2d 76, 97 A.L.R.2d 243 (Wyo. 1959). - An affidavit requires that the affiant make a conscious and unequivocal act. State v. Bishop, 921 S.W.2d 765 (Tex. App. San Antonio 1996). - [FN2] Donnellan v. City of Novato, 86 Cal. App. 4th 1097, 103 Cal. Rptr. 2d 882 (1st Dist. 2001). - [FN3] Bigler v. State, 602 N.E.2d 509 (Ind. Ct. App. 1st Dist. 1992). - [FN4] Meigs v. Black, 25 Kan. App. 2d 241, 960 P.2d 770 (1998). - The purpose of permitting a declaration under penalty of perjury, in lieu of a sworn statement, is to help insure that declarations contain a truthful factual representation and are made in good faith. In re Marriage of Reese & Guy, 73 Cal. App. 4th 1214, 87 Cal. Rptr. 2d 339 (4th Dist. 1999). - [FN5] Manchenton v. Auto Leasing Corp., 135 N.H. 298, 605 A.2d 208 (1992). - [FN6] Mugavero v. Kenzler, 317 Ill. App. 3d 162, 251 Ill. Dec. 46, 739 N.E.2d 979 (2d Dist. 2000). - If one was not sworn to before official or person in authority, it is not valid. State v. Bishop, 921 S.W.2d 765 (Tex. App. San Antonio 1996). - [FN7] Goggin v. Grimes, 969 S.W.2d 135 (Tex. App. Houston 14th Dist. 1998). - [FN8] Lindley v. Midwest Pulmonary Consultants, P.C., 55 S.W.3d 906 (Mo. Ct. App. W.D. 2001). - An affidavit that contains only legal conclusions is substantively deficient and, although formal deficiencies in an affidavit can be waived if not raised in trial court, substantive deficiencies cannot be waived. Elam v. Quest Chemical Corp., 884 S.W.2d 907 (Tex. App. Beaumont 1994), rehg overruled, (Nov. 22, 1994) and judgment revd on other grounds, 898 S.W.2d 819 (Tex. 1995) and writ granted, (May 25, 1995). - [FN9] Thatcher v. Darr, 27 Wyo. 452, 199 P. 938, 16 A.L.R. 1442 (1921). - [FN10] Lincoln Nat. Bank v. Mundinger, 528 N.E.2d 829 (Ind. Ct. App. 3d Dist. 1988). - [FN11] Bloyed v. General Motors Corp., 881 S.W.2d 422 (Tex. App. Texarkana 1994), writ granted, (Feb. 16, 1995) and judgment affd, 916 S.W.2d 949 (Tex. 1996). [FN12] Double S, Inc. v. Northwest Kansas Production Credit Assn, 17 Kan. App. 2d 740, 843 P.2d 741 (1992). - A verification is an affidavit attached to the statement as to truth of the matters set forth in the statement. Eveleigh v. Conness, 261 Kan. 970, 933 P.2d 675 (1997). - [FN13] Meigs v. Black, 25 Kan. App. 2d 241, 960 P.2d 770 (1998). - [FN14] In re Morelli, 11 Cal. App. 3d 819, 91 Cal. Rptr. 72 (2d Dist. 1970). - [FN15] Slavenburg Corp. v. Opus Apparel, Inc., 53 N.Y.2d 799, 439 N.Y.S.2d 910, 422 N.E.2d 570 (1981), ruling, however that even those persons who are statutorily allowed to use affirmations in lieu of affidavits cannot do so when they are a party to an action. - [FN16] Gilbride v. Trunnelle, 620 N.W.2d 244 (Iowa 2000). - A professional statement is a technique, used as a matter of convenience and practical necessity to establish a record of matters peculiarly within the knowledge of an attorney. Blum v. State, 510 N.W.2d 175 (Iowa Ct. App. 1993). - In offering a professional statement an attorney pledges the honor of his profession and his personal integrity. Gilbride v. Trunnelle, 620 N.W.2d 244 (Iowa 2000). - [FN17] Gilbride v. Trunnelle, 620 N.W.2d 244 (Iowa 2000). 3 Am. Jur. 2d Affidavits § 2 American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. I. In General Topic Summary Correlation Table References § 2. Distinctions from other instruments Proper execution of self-proving affidavit as validating or otherwise curing defect in execution of will itself, 1 A.L.R. 5th 965. Wests Key Number Digest Wests Key Number Digest, Affidavits 1 A deposition, in its more technical and appropriate sense, is limited to the written testimony of a witness given in the course of a judicial proceeding, either at law or in equity, in advance of the trial or hearing upon oral examination or in response to written interrogatories and where an opportunity is given for cross- examination.[FN1] The giving of a deposition may be compelled.[FN2] An acknowledgment is a means of authenticating an instrument by showing that it was the act of the person executing it.[FN3] An acknowledgment consists of an oral declaration of the party executing the instrument and a written certificate attesting to the oral declaration.[FN4] An acknowledgment does not constitute an affidavit because it does not purport to be a certification that the person acknowledging it swears to the truth of the matter set out.[FN5] A requirement that a paper be sworn to contemplates the execution of an affidavit that the facts contained in it are true, and not an acknowledgment.[FN6] The difference between an affidavit and an oath is that an affidavit consists of a statement of fact, which is sworn to as the truth, while an oath is a pledge.[FN7] Broadly speaking, pleadings and affidavits are distinguishable in that affidavits must state facts under oath, whereas pleadings may contain allegations of ultimate facts, and verification of a pleading may not be necessary in all cases.[FN8] An affidavit is not a pleading and cannot ordinarily be made to take place of a pleading.[FN9] -------------------------------------------------------------------------------- [FN1] 23 Am. Jur. 2d, Depositions and Discovery § 108. - [FN2] 23 Am. Jur. 2d, Depositions and Discovery § 148. - [FN3] 1 Am. Jur. 2d, Acknowledgments § 1. - [FN4] 1 Am. Jur. 2d, Acknowledgments § 1. - [FN5] Cutler v. Ament, 726 S.W.2d 605 (Tex. App. Houston 14th Dist. 1987), writ refused n.r.e., (Sept. 16, 1987). - An acknowledgment shows, merely prima facie, that the instrument was duly executed, whereas a verification is an affidavit attached to the statement as to truth of the matters therein set forth. Eveleigh v. Conness, 261 Kan. 970, 933 P.2d 675 (1997). - As to the definition of a verification, see § 1. - [FN6] State v. Wolfe, 156 Conn. 199, 239 A.2d 509 (1968); Gilman Paint & Varnish Co. v. Legum, 197 Md. 665, 80 A.2d 906, 29 A.L.R.2d 286 (1951). - [FN7] 58 Am. Jur. 2d, Oath and Affirmation § 3. - [FN8] State v. Londe, 345 Mo. 185, 132 S.W.2d 501 (1939). - [FN9] In re Petition to Annex Certain Property to City of Wood Dale, 244 Ill. App. 3d 820, 183 Ill. Dec. 343, 611 N.E.2d 606 (2d Dist. 1993). 3 Am. Jur. 2d Affidavits II Refs. American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. II. Persons Who May Make Affidavit Topic Summary Correlation Table Research References Wests Key Number Digest Wests Key Number Digest, Affidavits 2 A.L.R. Library A.L.R. Digest: Affidavits § 2 A.L.R. Index: Affidavits Forms 1A Am. Jur. Legal Forms 2d, Affidavits and Declarations §§ 13:13 et seq., 13:47, 13:53, 13:56 to 13:59, 13:72 1B Am. Jur. Pleading and Practice Forms, Affidavits §§ 115, 141, 142, 144 to 147, 149.1 3 Am. Jur. 2d Affidavits § 3 American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. II. Persons Who May Make Affidavit Topic Summary Correlation Table References § 3. Generally Wests Key Number Digest Wests Key Number Digest, Affidavits 2 Forms Identification and oath. 1A Am. Jur. Legal Forms 2d, Affidavits and Declarations §§ 13:13 et seq. Affidavit—Before notary public. 1B Am. Jur. Pleading and Practice Forms, Affidavits § 141. Where a statute specifies who can make an affidavit, only an affidavit by that specified person will suffice.[FN1] In the absence of statutory regulation, generally, anyone who has knowledge of the facts and is competent to testify may make an affidavit.[FN2] -------------------------------------------------------------------------------- [FN1] Standard of Beaverdale, Inc. v. Hemphill, 746 S.W.2d 662 (Mo. Ct. App. E.D. 1988). - [FN2] Moore v. Besse, 35 Cal. 184, 1868 WL 778 (1868). - As to necessity of personal knowledge, see § 13. 3 Am. Jur. 2d Affidavits § 4 American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. II. Persons Who May Make Affidavit Topic Summary Correlation Table References § 4. Agent or attorney Sufficiency of affidavit made by attorney or other person on behalf of plaintiff for purpose of service by publication, 47 A.L.R. 2d 423 § 3. Wests Key Number Digest Wests Key Number Digest, Affidavits 2 Forms Capacity of affiant—Attorney of record. 1A Am. Jur. Legal Forms 2d, Affidavits and Declarations § 13:53. Capacity of affiant—Attorney in fact. 1A Am. Jur. Legal Forms 2d, Affidavits and Declarations § 13:58. Affidavit—By attorney of plaintiff—In support of motion for summary judgment. 1B Am. Jur. Pleading and Practice Forms, Affidavits § 144. Affidavit—By attorney of plaintiff—In support of motion for entry of default. 1B Am. Jur. Pleading and Practice Forms, Affidavits § 145. Affidavit—Before notary public—By attorney for defendant—In support of motion for order directing plaintiff to submit to physical examination. 1B Am. Jur. Pleading and Practice Forms, Affidavits § 146. Affidavit—Before notary public—By attorney for defendant—Motion for order requiring attorney for plaintiff to produce evidence of attorneys authority. 1B Am. Jur. Pleading and Practice Forms, Affidavits § 147. Affidavit—Before notary public—Of attorney—In support of continuance. 1B Am. Jur. Pleading and Practice Forms, Affidavits § 149.1. While the appropriate party to attest to the facts is the plaintiff himself, not the plaintiffs attorney,[FN1] statutes have sometimes expressly authorized affidavits for certain purposes to be made by agents or attorneys.[FN2] Thus, where the principal is absent or ill, or for some other reason is unable to make an affidavit, an affidavit by his agent or attorney, who has knowledge of the facts, may be received,[FN3] and it must rest upon his personal knowledge in an area in which he is competent to testify.[FN4] However, an attorneys affidavit that is not based upon personal knowledge is without value.[FN5] An affidavit verified by counsel as true and correct to the best of his knowledge is insufficient as an affidavit unless authorized by statute.[FN6] It is, however, within the judgment or discretion of the court to receive the affidavit of an agent or attorney in situations where a different construction of the statute might defeat the ends of justice.[FN7] Thus, the personal knowledge of the terms of a settlement may be attributed to a lawyer for one of the parties and the absence of a recitation of personal knowledge by an attorney affiant concerning settlement terms may not render an affidavit inadequate.[FN8] The professional statements of a litigants attorney are treated as affidavits, and the attorney making a statement may be cross-examined regarding substance of the statement.[FN9] An attorney may respond to the defendants legal arguments regarding the case, and the court may consider an affidavit on that basis.[FN10] Caution: The practice of an attorney filing an affidavit on behalf of his client asserting the status of that client is not approved, inasmuch as not only does the affidavit become hearsay, but it places the attorney in a position of a witness, thus compromising his role as an advocate.[FN11] Reminder: It is good practice for the agent to show he has special knowledge, indicating the sources thereof, except when the affidavit may be, and is, made on information and belief.[FN12] -------------------------------------------------------------------------------- [FN1] Leather Facts, Inc. v. Foy, 157 Misc. 2d 35, 595 N.Y.S.2d 874 (City Civ. Ct. 1993). - [FN2] Schwarz v. Smith, 325 S.W.2d 407 (Tex. Civ. App. Waco 1959), writ refused n.r.e., 160 Tex. 280, 329 S.W.2d 83 (1959). - As to the verification of pleading by attorney or agent, see 61B Am. Jur. 2d, Pleading § 892. [FN3] Wilson v. Steinbach, 98 Wash. 2d 434, 656 P.2d 1030 (1982). - [FN4] Bowman v. Henard, 547 S.W.2d 527 (Tenn. 1977). - [FN5] Romel v. Reale, 155 A.D.2d 747, 547 N.Y.S.2d 691 (3d Dept 1989). - [FN6] International Turbine Service, Inc. v. Lovitt, 881 S.W.2d 805 (Tex. App. Fort Worth 1994), rehg overruled, (Aug. 9, 1994) and writ denied, (Nov. 17, 1994). - [FN7] Southern Attractions, Inc. v. Grau, 93 So. 2d 120 (Fla. 1956). - [FN8] Possehl v. Ossino, 28 Mass. App. Ct. 918, 547 N.E.2d 59 (1989). - [FN9] Frunzar v. Allied Property and Cas. Ins. Co., 548 N.W.2d 880 (Iowa 1996). - [FN10] Leather Facts, Inc. v. Foy, 157 Misc. 2d 35, 595 N.Y.S.2d 874 (City Civ. Ct. 1993). - [FN11] Porter v. Porter, 274 N.W.2d 235 (N.D. 1979). - As to affidavits made by agents or attorneys of corporations, see § 5. [FN12] Wakely v. Sun Ins. Office of London, Eng., 246 Pa. 268, 92 A. 136, 3 A.L.R. 128 (1914). - As to affidavits on information and belief, see § 8. 3 Am. Jur. 2d Affidavits § 5 American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. II. Persons Who May Make Affidavit Topic Summary Correlation Table References § 5. Persons acting on behalf of corporation Wests Key Number Digest Wests Key Number Digest, Affidavits 2 A.L.R. Library Sufficiency of affidavit made by attorney or other person on behalf of plaintiff for purpose of service by publication, 47 A.L.R. 2d 423 § 7. Forms Before notary public—By corporate officer. 1A Am. Jur. Legal Forms 2d, Affidavits and Declarations § 13:47. Capacity of affiant—Officer of corporation as agent. 1A Am. Jur. Legal Forms 2d, Affidavits and Declarations § 13:56. Capacity of affiant—Employee and agent of municipal corporation. 1A Am. Jur. Legal Forms 2d, Affidavits and Declarations § 13:57. Capacity of affiant—Attorney in fact for corporation. 1A Am. Jur. Legal Forms 2d, Affidavits and Declarations § 13:59. Disposition of real property interest—Nonforeign transferor—Corporation. 1A Am. Jur. Legal Forms 2d, Affidavits and Declarations § 13:72. Capacity of affiant—Agent—Of corporation. 1B Am. Jur. Pleading and Practice Forms, Affidavits § 115. Affidavit—Before notary public—By officer of corporation. 1B Am. Jur. Pleading and Practice Forms, Affidavits § 142. Affidavits on behalf of corporations may be made by any duly authorized officer or agent having knowledge of facts verified.[FN1] The theory is that the corporation, when acting in this regard through its officers, is acting per se, and not per alium.[FN2] An officer must possess the requisite knowledge.[FN3] An important consideration in determining the sufficiency of an affidavit made by an agent or attorney who is not an officer is whether or not the facts alleged are within the personal knowledge of the affiant.[FN4] Generally, the agents personal knowledge of the facts sworn to will not be presumed, and, therefore, the means and sources of his information should be shown.[FN5] CUMULATIVE SUPPLEMENT Cases: Affidavit of engineering manager employed by dairys customer, submitted by dairys insurer in support of motion for summary judgment in dairys action against insurer alleging breaches of commercial general liability policy, commercial excess insurance policy, and deluxe income business policy by failing to defend or agree to indemnify dairy against claims by customer resulting from explosion and fire in dairys ice cream plant, was not self-serving, and thus not subject to strike; affidavit acknowledged limits on types of damages that customer was seeking in its action against dairy, and, while such averments may have been beneficial to insurer, they did not benefit customer. Wells Dairy, Inc. v. Travelers Indemnity Co. of Illinois, 241 F. Supp. 2d 945 (N.D. Iowa 2003). [END OF SUPPLEMENT] -------------------------------------------------------------------------------- [FN1] Federal Land Bank of Saint Paul v. Anderson, 401 N.W.2d 709 (N.D. 1987). - As to the verification of pleadings by corporations, see 19 Am. Jur. 2d, Corporations §§ 2222, 2223. [FN2] American Soda Fountain Co. v. Stolzenbach, 75 N.J.L. 721, 68 A. 1078 (N.J. Ct. Err. & App. 1908). - As to necessity of statement as to authority to make affidavit, see § 6. [FN3] United Bonding Ins. Co. v. Dura-Stress, Inc., 243 So. 2d 244 (Fla. Dist. Ct. App. 2d Dist. 1971); American Soda Fountain Co. v. Stolzenbach, 75 N.J.L. 721, 68 A. 1078 (N.J. Ct. Err. & App. 1908). - As to the necessity that the affiant state facts within his or her knowledge generally, see § 14. [FN4] Wakely v. Sun Ins. Office of London, Eng., 246 Pa. 268, 92 A. 136, 3 A.L.R. 128 (1914). - As to affidavits made by agents or attorneys generally, see § 4. - As to necessity of statement as to authority to make affidavit, see § 3. [FN5] Columbia Screw Co. v. Warner Lock Co., 138 Cal. 445, 71 P. 498 (1903); Mintz v. Tri-County Natural Gas Co., 259 Pa. 477, 103 A. 285 (1918). 3 Am. Jur. 2d Affidavits III Refs. American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. III. Taking of Affidavit Topic Summary Correlation Table Research References Wests Key Number Digest Wests Key Number Digest, Affidavits 5, 6, 14 A.L.R. Library A.L.R. Digest: Affidavits § 1 A.L.R. Index: Affidavits Forms 1A Am. Jur. Legal Forms 2d, Affidavits and Declarations § 141 1B Am. Jur. Pleading and Practice Forms, Affidavits §§ 13:13 et seq. 3 Am. Jur. 2d Affidavits § 6 American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. § 6. Generally Wests Key Number Digest Wests Key Number Digest, Affidavits 5, 6, 14 A.L.R. Library Disqualification of attorney, otherwise qualified, to take oath or acknowledgment from client, 21 A.L.R. 3d 483. Forms Affidavit—Before notary public. 1B Am. Jur. Pleading and Practice Forms, Affidavits § 141. In order to make an affidavit, the officer, the affiant, and the paper must be present, and there must be something done which amounts to the administration of an oath.[FN1] The fact of the affiants swearing must be certified by a proper officer.[FN2] In some states, the question of an attorneys qualifications to administer an oath to his or her client is controlled by statute, and these statutes vary widely.[FN3] Caution: In the absence of statute, a notary public ordinarily has no power to take an affidavit to be used the basis of a warrant or arrest, although in some jurisdictions, the rule is otherwise.[FN4] As a general rule an affidavit is not invalid merely because it was taken on Sunday.[FN5] -------------------------------------------------------------------------------- [FN1] Kropp v. Roberts, 246 Ga. App. 497, 540 S.E.2d 680 (2000). - [FN2] Lee v. CSX Transp., Inc., 233 Ga. App. 30, 503 S.E.2d 309 (1998). - Documents ascribed and sworn to before a person not authorized by law to administer oaths is not an affidavit and is void as such. State v. Haase, 247 Neb. 817, 530 N.W.2d 617 (1995). - As to the authority to administer oaths, generally, see 58 Am. Jur. 2d, Oath and Affirmation §§ 11 et seq. - [FN3] 58 Am. Jur. 2d, Oath and Affirmation § 13. - [FN4] 58 Am. Jur. 2d, Notaries Public § 37. - [FN5] State v. Conwell, 96 Me. 172, 51 A. 873 (1902). - As to Sundays and holidays, generally, see 73 Am. Jur. 2d, Sundays and Holidays. 3 Am. Jur. 2d Affidavits § 7 American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. § 7. Administering of oath or affirmation Wests Key Number Digest Wests Key Number Digest, Affidavits 6, 14 Forms 1A Am. Jur. Legal Forms 2d, Identification and Oath—Affidavits §§ 13:13 et seq. The affiant must swear to the affidavit, and fact of his swearing must be certified by a proper officer.[FN1] The notary and affiant must be present together for giving of oath.[FN2] An affidavit is not a lawful affidavit where signed outside the presence of the officer and no oath was administered.[FN3] Thus, a notarys administration of the oath over a telephone, rather than in the affiants presence, does not create a valid affidavit.[FN4] It is not necessary that the oath administered be formal, nor is it necessary that any exact words or specific ceremony be used to constitute a valid administration of an oath.[FN5] There must be something which amounts to the administration of an oath or affirmation, and this requires concurrent action on the part of the affiant and an authorized officer.[FN6] For an affidavit to be valid, there must be, in the presence of the officer, something done by which the person to be bound consciously takes upon himself the obligation of an oath. It is not essential that the affiant should hold up his hand and swear in order to make his act an oath, but it is sufficient if both affiant and the officer understand that what is done is all that is necessary to complete the act of swearing.[FN7] Observation: An expert affidavit filed with a medical malpractice complaint was valid, even though the expert admitted in a deposition that the notary public whose jurat appeared on the affidavit did not administer an oath to the physician before he signed it, where the expert signed the affidavit in front of a notary public, and they both understood that what the expert had done was sufficient to complete the act of swearing.[FN8] Similarly, where an affiant signed his name to a statement wherein he stated on oath that he had read the attached document, that he knew its contents, and that they were true, it was held that the statement constituted proof that he was conscious of the fact that he was swearing to the correctness of the attached document, and the document was verified according to law, even though the notary, instead of executing a jurat, executed a certificate of acknowledgment.[FN9] CUMULATIVE SUPPLEMENT Cases: The oath requirement for a valid affidavit is met, whatever the form of the oath adopted, if the oath is taken in the presence of an officer authorized to administer it, and it must be an unequivocal and present act by which the affiant consciously takes upon himself the obligation of an oath. People v. Penaflorida, 932 N.Y.S.2d 682 (N.Y. City Civ. Ct. 2011). [END OF SUPPLEMENT] -------------------------------------------------------------------------------- [FN1] Lee v. CSX Transp., Inc., 233 Ga. App. 30, 503 S.E.2d 309 (1998). - [FN2] Sambor v. Kelley, 271 Ga. 133, 518 S.E.2d 120 (1999). [FN3] Phoebe Putney Memorial Hosp. v. Skipper, 235 Ga. App. 534, 510 S.E.2d 101 (1998). - [FN4] Sambor v. Kelley, 271 Ga. 133, 518 S.E.2d 120 (1999). - As to acknowledgments taken over the telephone, see 1 Am. Jur. 2d, Acknowledgments § 25. - [FN5] Harris v. Murray, 233 Ga. App. 661, 504 S.E.2d 736 (1998). - [FN6] Thompson v. Self, 197 Ark. 70, 122 S.W.2d 182 (1938); Kirk v. Hartlieb, 193 Ark. 37, 97 S.W.2d 434 (1936). - [FN7] Harris v. Murray, 233 Ga. App. 661, 504 S.E.2d 736 (1998). - [FN8] Harris v. Murray, 233 Ga. App. 661, 504 S.E.2d 736 (1998). - [FN9] Dalbey Bros. Lumber Co. v. Crispin, 234 Iowa 151, 12 N.W.2d 277 (1943). 3 Am. Jur. 2d Affidavits IV A Refs. American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. IV. . Elements of Affidavit A. In General Topic Summary Correlation Table Research References Wests Key Number Digest Wests Key Number Digest, Affidavits 9 to 12 A.L.R. Library A.L.R. Digest: Affidavits § 1 A.L.R. Index: Affidavits Forms 1A Am. Jur. Legal Forms 2d, Affidavits and Declarations §§ 13:20, 13:22 et seq., 13:44, 13:50, 13:51, 13:75 1B Am. Jur. Pleading and Practice Forms, Affidavits §§ 21 to 23, 31 to 34, 41 to 55, 61 to 75, 81 to 90, 101, 102, 155 3 Am. Jur. 2d Affidavits § 8 American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. IV. Elements of Affidavit A. In General Topic Summary Correlation Table References § 8. Generally Wests Key Number Digest Wests Key Number Digest, Affidavits 9 to 12 A.L.R. Library Admissibility of affidavit to impeach witness, 14 A.L.R. 4th 828. Forms Caption. 1B Am. Jur. Pleading and Practice Forms, Affidavits §§ 21 to 23. Venue. 1B Am. Jur. Pleading and Practice Forms, Affidavits §§ 31 to 34. Introduction of affidavit. 1B Am. Jur. Pleading and Practice Forms, Affidavits §§ 41 to 55. Affidavit—Of handwriting expert—Forged signature. 1B Am. Jur. Pleading and Practice Forms, Affidavits § 155. An affidavit must set forth facts and show affirmatively how the affiant obtained personal knowledge of those facts.[FN8] Thus, an affidavit that does not positively and unequivocally represent the facts as disclosed in the affidavit to be true and within the affiants personal knowledge is legally insufficient.[FN9] An objection that an affidavit contains statements of opinion[FN10] or hearsay in an affidavit are defects in form, and whether an affiant has personal knowledge and is competent are objections to form.[FN11] Similarly, an affidavit is not a lawful affidavit where signed outside the presence of the officer and no oath is administered.[FN12] Practice Guide: A verified pleading that sets forth evidentiary facts within the personal knowledge of the verifying signatory is in substance an affidavit, and is accorded the same probative force as affidavit.[FN13] A verification is a type of statement given under oath where the declarant must not only refrain from making a knowingly false statement, but must also have affirmative knowledge of the statements truthfulness.[FN14] To function as an opposing affidavit, the verified complaint must be based on personal knowledge and set forth specific facts admissible in evidence.[FN15] Observation: An attorneys affidavits filed in support of her motion for summary judgment in a legal malpractice action were not defective, where the attorney stated that she was fully competent and qualified to make the affidavit on her own personal knowledge, that she was the attorney for the client in the underlying divorce until she withdrew, that she intervened for her fees, and that the attached exhibits were true and correct copies of the originals, and she signed the affidavit which was sworn to and subscribed before a notary public.[FN16] CUMULATIVE SUPPLEMENT Cases: An affidavit that does not state that the facts recited are true, but is based on personal knowledge and is subscribed to and sworn before a notary public, is not defective. Churchill v. Mayo, 224 S.W.3d 340 (Tex. App. Houston 1st Dist. 2006), review denied, (Nov. 17, 2006). [END OF SUPPLEMENT] -------------------------------------------------------------------------------- [FN1] Roberson v. Ocwen Federal Bank FSB, 250 Ga. App. 350, 553 S.E.2d 162 (2001). - As to the administration of the oath, see § 7. - As to the signature of the affiant, see § 9. - As to the certificate of the officer, see § 11. [FN2] Acme Brick, a Div. of Justin Industries, Inc. v. Temple Associates, Inc., 816 S.W.2d 440 (Tex. App. Waco 1991), writ denied, (Dec. 11, 1991). - If an affidavit is prepared for use in a pending action, the courts generally require that it bear a caption, or heading, which states the title of the cause in which it is to be used, specifying the court and the names of the parties. Dollar v. Thompson, 212 Ga. 831, 96 S.E.2d 493 (1957). - [FN3] Bloyed v. General Motors Corp., 881 S.W.2d 422 (Tex. App. Texarkana 1994), writ granted, (Feb. 16, 1995) and judgment affd, 916 S.W.2d 949 (Tex. 1996). - [FN4] Centro Jurici de Instituto Tecnologico y Estudios Superiores de Monterrey v. Intertravel, Inc., 2 S.W.3d 446 (Tex. App. San Antonio 1999). - [FN5] Hoover v. Crippen, 151 Ill. App. 3d 864, 105 Ill. Dec. 8, 503 N.E.2d 848 (3d Dist. 1987). - [FN6] Allerion, Inc. v. Nueva Icacos, S.A. de C.V., 283 Ill. App. 3d 40, 218 Ill. Dec. 632, 669 N.E.2d 1158 (1st Dist. 1996), as modified on denial of rehg, (Sept. 17, 1996). - [FN7] Kirby v. Jarrett, 190 Ill. App. 3d 8, 137 Ill. Dec. 204, 545 N.E.2d 965 (1st Dist. 1989). - [FN8] M.G.M. Grand Hotel, Inc. v. Castro, 8 S.W.3d 403 (Tex. App. Corpus Christi 1999). - [FN9] David McDavid Nissan, Inc. v. Subaru of America, Inc., 10 S.W.3d 56 (Tex. App. Dallas 1999), review granted, (Dec. 7, 2000) and revd on other grounds, 44 Tex. Sup. Ct. J. 779, 2001 WL 578337 (Tex. 2001), rehg granted, (Dec. 6, 2001). - [FN10] Drew v. Harrison County Hosp. Assn, 20 S.W.3d 244 (Tex. App. Texarkana 2000). - [FN11] Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 43 U.C.C. Rep. Serv. 2d 306 (Tex. App. Houston 14th Dist. 2000). - [FN12] Phoebe Putney Memorial Hosp. v. Skipper, 235 Ga. App. 534, 510 S.E.2d 101 (1998). - [FN13] Mata v. State, 124 Idaho 588, 861 P.2d 1253 (Ct. App. 1993). - [FN14] Double S, Inc. v. Northwest Kansas Production Credit Assn, 17 Kan. App. 2d 740, 843 P.2d 741 (1992). - [FN15] Schroeder v. McDonald, 55 F.3d 454, 32 Fed. R. Serv. 3d 196 (9th Cir. 1995). - [FN16] Goggin v. Grimes, 969 S.W.2d 135 (Tex. App. Houston 14th Dist. 1998). 3 Am. Jur. 2d Affidavits § 9 American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. IV. Elements of Affidavit A. In General Topic Summary Correlation Table References § 9. Signature of affiant Wests Key Number Digest Wests Key Number Digest, Affidavits 11 Forms Signature by mark—With witnesses. 1A Am. Jur. Legal Forms 2d, Affidavits and Declarations § 13:20. Forged signature. 1A Am. Jur. Legal Forms 2d, Affidavits and Declarations § 13:75. Affidavit—Of handwriting expert—Forged signature. 1B Am. Jur. Pleading and Practice Forms, Affidavits § 155. Generally, an affidavit must be sworn to in person before a notary public or other officer empowered to administer oaths for the affidavit to be valid and have the affiants signature attached.[FN1] An affidavit is not a lawful affidavit where signed outside the presence of the officer and no oath was administered.[FN2] Thus, an affidavit must be signed by the deponent, or his name must appear therein as the person who took the oath, in order to constitute a formal affidavit.[FN3] A plaintiffs statement was an affidavit, despite the lack of his signature, where the plaintiffs name appeared as the person who took the oath.[FN4] A statement which does not show that the person who made it was under oath is not an affidavit.[FN5] The signature need not be at the end, if it appears in any part and is applicable to the whole circumstance of the affidavit.[FN6] Caution: Except where positive law mandates addition of signature to record of oath administration, signature of deponent is not essential element of affidavit.[FN7] Thus, although in the absence of a statute or rule of court to the contrary, it is not necessary to the validity of an affidavit that it have the signature of the affiant subscribed thereto,[FN8] all the authorities and general custom recommend, as the better practice, that it be signed by the affiant.[FN9] Practice Guide: For purposes of a summary judgment motion, a plaintiff, by declaring under penalty of perjury that complaint is true (i.e. verifying complaint pursuant to 28 U.S.C.A. § 1746), and by signing it, converts the complaint, or rather those factual assertions in the complaint that comply with the requirements for affidavits specified in Fed. R. Civ. P. 56(e), into an affidavit.[FN10] CUMULATIVE SUPPLEMENT Statutes: Fed. R. Civ. P. 56 was substantially amended April 28, 2010, effective December 1, 2010. Under the amended Rule, the requirements for affidavits are in Fed. R. Civ. P. 56(c)(4), which provides that an affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated. Cases: The truth of the facts contained in an affidavit must be sworn to in order for the affidavit to be proper. State ex rel. Nixon v. McIntyre, 2007 WL 1974953 (Mo. Ct. App. W.D. 2007), rehg and/or transfer denied, (Aug. 28, 2007). Oaths to affidavits ordinarily are not required to be administered with any particular ceremony, but the affiant must perform some corporal act before the officer whereby the affiant consciously takes upon himself or herself the obligation of an oath. Moyer v. Nebraska Dept. of Motor Vehicles, 275 Neb. 688, 747 N.W.2d 924 (2008). [END OF SUPPLEMENT] -------------------------------------------------------------------------------- [FN1] Roberson v. Ocwen Federal Bank FSB, 250 Ga. App. 350, 553 S.E.2d 162 (2001). - [FN2] Phoebe Putney Memorial Hosp. v. Skipper, 235 Ga. App. 534, 510 S.E.2d 101 (1998). - [FN3] Northrop v. Lopatka, 242 Ill. App. 3d 1, 182 Ill. Dec. 937, 610 N.E.2d 806 (4th Dist. 1993). - [FN4] Chmielewski v. Kahlfeldt, 237 Ill. App. 3d 129, 179 Ill. Dec. 809, 606 N.E.2d 641 (2d Dist. 1992). - [FN5] Northrop v. Lopatka, 242 Ill. App. 3d 1, 182 Ill. Dec. 937, 610 N.E.2d 806 (4th Dist. 1993). - [FN6] General Motors Acceptance Corp. v. Sutherland, 122 Neb. 720, 241 N.W. 281 (1932). - [FN7] In re McAndrew, 105 Pa. Commw. 503, 524 A.2d 1072 (1987). - [FN8] Huff v. Com., 213 Va. 710, 194 S.E.2d 690 (1973). - [FN9] International Harvester Co. of America v. Embody, 89 Mont. 402, 298 P. 348 (1931); People ex rel. New York City Omnibus Corporation v. Miller, 282 N.Y. 5, 24 N.E.2d 722 (1939); State v. Higgins, 266 N.C. 589, 146 S.E.2d 681 (1966). - [FN10] Ford v. Wilson, 90 F.3d 245, 35 Fed. R. Serv. 3d 539 (7th Cir. 1996). 3 Am. Jur. 2d Affidavits § 10 American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. IV. Elements of Affidavit A. In General Topic Summary Correlation Table References § 10. Jurat Legal Encyclopedias Definition: A jurat is generally defined as a certificate added to an affidavit stating when, before whom, and where it was made.[FN1] Wests Key Number Digest Wests Key Number Digest, Affidavits 12 Forms Jurat; Affirmation. 1A Am. Jur. Legal Forms 2d, Affidavits & Declarations §§ 13:22 et seq. Jurat; Declaration. 1B Am. Jur. Pleading and Practice Forms, Affidavits §§ 61 to 75. 1B Am. Jur. Pleading and Practice Forms, Affidavits §§ 81 to 90. If a declaration has in fact been made under oath, it is an affidavit although no jurat may be attached.[FN2] A jurat, which is a symbol certifying the administration of an oath, is not part of an affidavit.[FN3] but simply evidence that oath was taken.[FN4] The jurat provides one effective means of attesting that an affidavit was sworn under oath, but is not the only effective or permissible means.[FN5] -------------------------------------------------------------------------------- [FN1] Allstate Savings & Loan Assn. v. Lotito, 116 Cal. App. 3d 998, 172 Cal. Rptr. 535 (2d Dist. 1981). - A notary jurat is a certificate of the due administration of an oath, the purpose of which is to evidence the fact that the affidavit has been duly sworn to by an officer authorized to administer an oath. State v. Colon, 230 Conn. 24, 644 A.2d 877 (1994). - Jurats are generally not competent to prove the identity of the affiant. Jordan v. Deery, 609 N.E.2d 1104 (Ind. 1993). - As to the power of notaries to administer oaths and affirmations, see 58 Am. Jur. 2d, Oath and Affirmation § 37. - [FN2] Eveleigh v. Conness, 261 Kan. 970, 933 P.2d 675 (1997). - [FN3] Yang v. Stafford, 515 N.E.2d 1157, 1 A.L.R.5th 1023 (Ind. Ct. App. 4th Dist. 1987). - [FN4] Bigler v. State, 602 N.E.2d 509 (Ind. Ct. App. 1st Dist. 1992). - [FN5] State v. Colon, 230 Conn. 24, 644 A.2d 877 (1994). 3 Am. Jur. 2d Affidavits § 11 American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. IV. Elements of Affidavit A. In General Topic Summary Correlation Table References § 11. Jurat—Effect of omission Wests Key Number Digest Wests Key Number Digest, Affidavits 12 According to one line of authority, the omission of a jurat is not fatal to the validity of an affidavit so long as it appears either from the instrument itself or from evidence aliunde that the affidavit was, in fact, duly sworn to before authorized officer.[FN1] Similarly, a document which has no jurat, or certificate that it was sworn to by the person who signed it, may be shown to be an affidavit by other evidence.[FN2] Thus, where the affiant is otherwise identified, courts overlook mere clerical errors such as naming the wrong person in a jurat or omitting the affiants name from a jurat entirely.[FN3] To attack an affidavit on improper execution grounds, there must be either evidence from the witness or notary or from the face of the affidavit showing that the execution was not made in the notarys physical presence.[FN4] In some jurisdictions, however, in the absence of a valid jurat, a writing in the form of an affidavit has no force, no validity, and amounts to nothing, when standing alone or when construed in connection with other evidence.[FN5] Another view is that an affidavit with an invalid jurat is admissible as an unsworn statement if there is no requirement that the statement be sworn for the purpose that it is offered.[FN6] Similarly, in some jurisdictions, without the official certification by an officer authorized to administer oaths, a statement is not an affidavit, and is not competent summary judgment proof
Posted on: Thu, 05 Jun 2014 03:44:19 +0000