Legal Opinion

Mitchell v. Tishomingo Savings Institution

Mississippi Supreme Court

Decided October 15, 1876PublishedCited by 3 opinions

Appeal from the Chancery Court of Alcorn County. Hon. C. CulLens, Chancellor. It is conceded that the authorities and brief for the appellee might be applicable, if he had any case in court, but he has none. 1. The answer is not sworn to. Story Eq. PI. § 874. 2. The answer sets up an affirmative defence which must be proved. 1. The answer must be verified by affidavit.

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Appeal from the Chancery Court of Alcorn County. Hon. C. CulLens, Chancellor. It is conceded that the authorities and brief for the appellee might be applicable, if he had any case in court, but he has none. 1. The answer is not sworn to. Story Eq. PI. § 874. 2. The answer sets up an affirmative defence which must be proved. 1. The answer must be verified by affidavit. Griffin v. State Bank, 17 Ala. 258; Rainey v. Rainey, 35 Ala. 282; Fulton Bank v. New York Ganal Co., 1 Paige, 211; 4 Paige, 211. 2. The defence, in confession and avoidance, must be proved. Buchner v. Bierne, 9 S. & M. 304; 44…

1Opinion of the CourtChalmers, J.

A motion to dissolve an injunction was, by written consent of the parties, heard by the Chancellor in vacation, and sustained. The written agreement recites that it shall be heard “ upon bill, answer and proofs.” The answer was not sworn to, and it is now urged that the absence of verification rendered it a nullity, and that there was therefore no issue joined upon which the Chancellor could pass judgment.

An answer in chancery must be verified by affidavit, and, if this be omitted, it may be treated as a nullity, and stricken from the files on motion; but if no exception be taken by the…

2Cases cited1 opinion

  1. Fulton Bank v. BeachNew York Court of Chancery · 1830

3Cited by3 opinions

  1. Mississippi Telephone Corp. v. Mississippi Public Service CommissionMississippi Supreme Court · 1983
  2. Dyer v. WilliamsMississippi Supreme Court · 1884
  3. Miss. Tel. Corp. v. Miss. Pub. Serv. Com'nMississippi Supreme Court · 1983

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