Laswell v. Presbyterian Church of Jefferson City

Wagneb,, Judge, delivered the opinion of the court. Faulk made a contract to erect the Presbyterian church in Jefferson City, and employed Laswell to do certain work on the [281] same. Laswell filed his lien a3 a sub-contractor, and attempted . to enforce it by legal process; but upon a trial in the Circuit 'pourt, under certain rulings, he took a nonsuit, which failing to have set aside, and the District Court affording him no relief, he noAV prosecutes h'is writ of error. In his notice claiming the lien, after describing the property, he states that his demand is for .$154, which is duo him from M. D. Eaulk, who was the contractor for the work, and for whom he did the labor and work, and to an amount leaving the balance as stated. In his statement filed for the purpose of acquiring a lien, he sets'out the account, and says it was for materials furnished and .labor done on the outside and inside of the church, making in all the amount of $154. He also states that it is a true account of the demand, after all just credits have been given the said Eaulk, and all others interested therein, for work and labor done and materials furnished by him, in and upon the Presbyterian church, under a contract with Eaulk, the undertaker. The description of the property is set forth, and the statement is signed by Laswell. The certificate of verification appended is as follows: “B. F. Laswell, being duly sworn, says that tlie facts set forth ill the above statement and the above account are true, to the best of his knowledge and belief. O. M. Ward, Clerk.” The defendants objected to the reading of the lien in evidence because the affidavit appended to it was not signed by the plaintiff, or any one for him, and because there was no certificate of the clerk thereto, in due form of.law. The plaintiff then asked that the clerk be permitted to attach the proper jurat. The court refused to permit the clerk to amend his certificate,, and refused to permit the lien to be read to the jury. To the ruling of the court, exceptions were duly taken. The statute requires that where a lien is filed it shall be verified by the oath of the person filing it, or by some credible person for hinn ■ In this case Laswell .signed the statement, but he did not sign the certificate of the clerk as an affidavit separate from the statement. Whilst it. is true that in general practice, and by the current of the authorities, an affidavit should be signed by [282] the party making it,-the statute does not in this matter seem to require an affidavit hr express terms*. It only demands that the statement shall be verified, by oath.. • ■ . • Where a defendant, in his answer under the practice act, signed his name at the bottom of his answer., and the magistrate administering the* oath appended his statement, that the defendant'personally-appeared before him and. made oath that the facts stated in the answer were-true, it was held a substantial compliance with-.the statute, and that it was not necessary for the defendant to sign the certificate, of .the magistrate as an affidavit separate from the answer. (Smith v. Benton, 15 Mo. 371.) Although the clerk’s certificate states that Laswell was duly sworn to the truth and correctness of his statement and account, still it was not made out in the usual form. But that should not have been permitted .to work to Laswell’s prejudice. He had performed the full measure of his duty in regard :to the matter. He took his statement-and lien to the' clerk to be filed, and that officer swore him as the law directs. :If the clerk negligently performed his duty, or made a .defective certificate, Laswell should not be made to suffer thereby. To permit such a thing would be. to allow the merest technicality to triumph over justice. I am clearly of the- opinion that the court erréd, and that the clerk should have been allowed to amend his certificate. , Although it was not necessary to the decision of anything saved-in this record,- it seems that the District Court went further, and adjudged that the plaintiff was not entitled to a lien in this case. As the cause will be remanded, and to save future litigation, I will notice the .objection. * The :point--is-raised upon the supposed inaccuracy and the blending of incongruous matters in the account.' The account is for materials furnished and work and labor done. It was filed more than thirty-days after the demand accrued, but within four months. -The fifth section of the law'in' reference.to mechanics’ liens, provides ;that..u it.shall-be the duty of every original • contractor, within. sis -months, and every journeyman and day-laborer, within thirty days, and of eveiother person seeking to obtain the benefits of the provisions of this chapter, within four [283] months, after the indebtedness shall have accrued, to'file with the clerk of the Circuit Court of the proper county a jus.t and true account of the demand due him or them,” etc. (2 Wagn. Stat. 909, § 5.) It is only the day-laborer and journeyman that are compelled to file their lien within thirty days, while material-men, sub-contractors and others have four months within which to file the same. The case shows that the plaintiff was neither a day-laborer nor a journeyman, but he explicitly declares that he did the work and furnished the materials under a contract with Faulk, the original contractor. If he contracted to do a certain, piece of work, and furnish materials in' and about the same, his statement and account for work done and materials furnished according to contract, it seems to me, is sufficient. If the work had been done as a day-laborer or journeyman, and ho had blended the items for labor with those for materials, after the lapse of thirty days the lien would have been lost, for they could not have been separated. But this case is not presented in that aspect. It is also objected that the notice claimed only for work and labor performed, when the lien comprehended materials in addition. But there is obviously nothing in this. All that the law requires to be inserted in the notice is that the person holds a claim against the building or improvements, setting forth the amount and from whom the same was duo. (2 Wagn. Stat. 911, § 19.) It is immaterial about particularizing in what specific .manner the demand accrued. That fact is determined by inspecting the lien on file. Wherefore the judgment will be reversed and the cause remanded. Judge Currier concurs ; Judge Bliss absent.