Heitz v. Sayers

Pennewill, C. J. The affidavit filed by the claimant in support of the statement of claim is as follows: ‘ ‘ That he is the plaintiff in the above-stated cause. That the above statement and the facts therein alleged are true to the best of his knowledge and belief.” The law provides that— “ The claimant shall make affidavit to the truth and correctness of the said claim and of the facts stated therein.” Chapter 225, 29 Del.Laws, 725, amending Rev. Code 1915, § 2843. Under this provision the affidavit filed is usually in the following form: “ The above claim and the facts therein stated (and the bill of particulars thereto annexed) are true and correct.” 2 Woolley, § 1401. The question is on the sufficiency of the affidavit filed. A mechanics’ lien law is in derogation of the common law, and must, therefore, be strictly construed and pursued. A title under it is purely statutory, and its validity depends on an affirmative showing that every essential statutory step in the creation, contrivance or enforcement of the lien has been duly taken. Phillips on Mechanics’ Liens, § 18. The courts of this state have construed all statutory affidavits strictly and held them insufficient unless they were in conformity with the law. There is even greater reason for strictness in an affidavit filed in a mechanics’ lien case. “Statutory provisions permitting the summary enforcement of private charges, such as mechanics' liens, on property without the consent of the owner or judicial sanction cannot be extended in their operation beyond the plain and fair sense of the terms in which they are expressed.” Phillips on Mechanics’ Liens, stipra. [223] Does the affidavit in question, in which the affiant swears • according to the best of his knowledge and belief, meet the requirements of the statutes?. We think not. The court are of the opinion that the affidavit is insufficient and the exception should be sustained. There can be found some cases, and some statements by text writers to the effect that an affidavit need not follow the very words of the statute; it is sufficient if it is of equivalent import or effect. Story’s Adm’r v. Story, 32 Ind. 137; Stanhope v. Dodge, 52 Md. 483; 1 R. C. L. 772; and 2 Cyc. 25, and cases there cited. I have seen no case in which it has been so held where the affidavit was filed in a mechanics’ lien proceeding under a statute like ours. But there are mechanics’ lien cases more in point, in which it was stated that, where the law requires the claimant to swear that his statement is true, it is not sufficient to swear according to the best of his knowledge and belief. In the case of Dorman v. Crozier, 14 Kan. 224, the court said: “An affidavit * * * verifying a statement of a claim * * * under the mechanics’ lien law * * * should be s.worn to positively. * * An affidavit for such a purpose * * * stating that ‘the facts as above set forth are true and correct, according to the best of the [affiant’s] knowledge and belief,’ without showing that he had any knowledge on the subject, is not sufficient.” In Western Plumbing Co. v. Fried, 33 Mont. 7, 81 Pac. 394, 114 Am. St. Rep. 799, the statute required the statement to be verified by affidavit; held that an affidavit that the matters and things therein stated are true to the best of affiant’s knowledge, information and belief was invalid, not being verified in the manner required by law. In Merchants’, etc., Bank v. Hollis, 37 Tex. Civ. App. 479, 84 S. W. 269, the court said: “The affidavit, we think, was also defective in that it was made ‘to the best of affiant’s knowledge and belief.’ The affidavit provided for in the statute must be as to matters known to the party and be certain and without any modification or qualification. It is not shown that the bank had any actual know-edge of the lien, and the affidavit as recorded was not constructive notice.' ’ In 1 R. C. L. 112, it is stated that— [224] “Inasmuch as affidavits upon information and belief cannot supply the place of a positive allegation, affidavits of this nature cannot ordinarily be used except when authorized by statute.” (Citations.) We find no authority in the brief of claimant’s counsel that is really in conflict with our conclusion. There are some cases and texts also, as we have said, which hold that an affidavit made on information and belief is sufficient, but on examination it is found that they were made under statutes different from ours, or by courts that have not required such strict compliance with the statutes as the courts of this state have done. In some of the cases the law merely required that the statement should be filed after making oath thereto; that it should be sworn to or verified by the oath of the claimant himself or some credible person for him. Such were the Nebraska and Missouri cases, the strongest cited by claimant. Even in those cases the affidavits might have been held insufficient if the law had required the claimant to swear to the truth and correctness of his claim and the facts therein stated. Claimant’s counsel argues that the affidavit should be held ' sufficient because the treasurer of a large business corporation could not positively swear to the correctness of the company’s claim. The obvious answer to this argument is: (1) That inconvenience, difficulty or even impossibility of complying with-the law does not justifiy the court in disregarding it. Such argument would be more properly addressed to the Legislature. (2) That officers of corporations engaged in large business do swear positively when it is required, and rarely, if ever, according to the best of their knowledge and belief in a mechanics’ lien case. The claimant contends that the averment in his affidavit that the “facts therein alleged are true” is equivalent to swearing “to the truth and correctness of the said claim and of the facts stated therein,” and some of his cases are in support of such contention. The court express no opinion on this point, and we do not think counsel for defendant relied much upon it at'the argument. When a claimant swears that his claim is true, it would seem to follow that he swears to its truth and correctness, but our decision is based solely on the fact that an affidavit in a mechanics’ lien [225] case in which the affiant swears according to the best of his knowledge and belief is not sufficient. We regret very much that the claimant in this case must lose his lien because of the insufficiency of the affidavit, because it does not touch the merits of the case at all, and this is unfortunate in any case. But under the law as we find it, and the policy of our courts respecting.statutory affidavits, we cannot avoid the decision. The exception is sustained.