
    Carrie B. Naudain vs. Howard M. Naudain.
    
      Divorce—Petition—Affidavit—Sufficiency.
    
    1. Sec. 7, Chap. 221, Vol. 24, Laws of Delaware, requiring the plaintiff in a divorce proceeding, to state in his petition the true cause of the complaint, verified by his affidavit that the facts stated are true, is sufficiently met by his affidavit that the facts stated in the petition are “true to the best of his knowledge and belief.”
    2. An affidavit annexed to and filed with a petition for divorce, although it does not state the month or day of the month upon which it was made, is sufficient, as it is certain it was made before the action was commenced.
    3. The Court will assume that an affidavit without date, annexed to a petition for divorce, was taken before, and certified to by the notary after his appointment, even though it appears by the official seal of the notary affixed thereto, that he was appointed a short time before the petition was filed.
    4. Where the jurat to an affidavit, annexed to a petition for divorce, “Sworn and subscribed before me, the day and year first above written,” is signed,
    “[Notary’s Seal.] Barnet Gluckman,” ■—it sufficiently shows that the officer who signed the same, and affixed his seal of office thereto, was the officer by whom the petitioner was sworn, and before whom the affidavit was made.
    
      (March 15, 1910.)
    Pennewill, C. J., and Woolley, J., sitting.
    
      J. Frank Ball, for plaintiff in divorce.
    
      Robert Adair for the motion.
    Superior Court, New Castle County,
    January Term, 1910.
    Action for Divorce. (No. 39 January Term, 1910).
   Pennewill, C. J.:

A motion was made and argued at the last term of this Court to dismiss the petition filed by the plaintiff in the above stated case, for the following reasons:

1. That the alleged verification thereof by affidavit is not made in accordance with Section 7, Chapter 221, Vol. 24, Laws of Delaware.
2. That the alleged affidavit of the petitioner annexed to the said petition is incomplete and insufficient in law, in that it does not bear the date on which it was made, the month and the day of the month not appearing therein.
3. That it does not appear from the alleged affidavit that the Notary Public who signed and sealed the same was the one before whom said affidavit was made.

The affidavit is as follows:

“State of Delaware County of New Castle
“Be it remembered that on this day of
A. D. 1909, personally came before me,
Notary Public for the State of Delaware, Carrie B..Naudain, who being by me duly sworn according to law deposes and says: that she is the plaintiff in the above petition, that the facts stated in said petition are true to the best of her knowledge and belief, and that the complaint is not made out of levity nor by collusion.
Carrie B. Naudain,
“Sworn and subscribed before me, the day and year first above written.
[Notary’s Seal]
Barnet Gluckman.”

The statute referred to provides that “the proceedings for divorce, or to have a marriage annulled, shall be by petition filed with the Prothonotary of the Superior Court in the county of the petitioner’s residence, stating the true cause of the complaint and verified by the affidavit of the petitioner that the facts stated are true,” etc.

The affidavit annexed to and filed with the petition in this case avers, “that the facts stated in said petition are true to the best of her knowledge and belief.”

Is such an averment a sufficient compliance with the requirement of the statute, or should the petitioner have sworn that the facts sated are true, in the exact language of the act. We are of the opinion, after a careful consideration of the question, that the requirement of the statute is met when the petitioner swears that the facts stated in the petition are true to the best,of her knowledge and belief. Such we believe to be a fair construction of the act, and the manifest intention of the Legislature in its passage.

There are many actions for divorce, and particularly when the ground or complaint is adultery, in which the petitioner could not have actual, personal knowledge, of the acts alleged to have been committed by the defendant. And while the petition in every case must be verified by the affidavit of the plaintiff, we think the statute does not mean, and the Legislature could not have intended, either that the plaintiff should swear that facts are true of which she could not have personal knowledge, or that it should be made impossible for the aggrieved party to secure a divorce by an inability to verify the facts alleged in her petition, when they could be clearly and satisfactorily proved by the testimony of other competent witnesses.

We think the second reason assigned for the dismissal of the petition is insufficient because, although the affidavit does not state the month, or day of the month, upon which it was made, it is certain that it was made before the action was commenced. The affidavit was annexed to and filed with the petition, and the fifing of the petition was the commencement of the suit. And although the Notary Public who made the certificate to the affidavit was apointed to office, as appears by his official seal, a very short time before the petition was filed, we will assume that the affidavit was taken and the certificate made by the Notary after he was appointed, and not before.

We also think the third reason assigned for the dismissal of of the petition is insufficient.

There can be no doubt, from an examination of the affidavit, and Notary’s certificate, that the officer who signed the certificate and affixed his seal of office, was the one by whom the petitioner was sworn—before whom the affidavit was made.  