Dalbey Bros. Lumber Co. v. Crispin

• Decision Date: 14 December 1943
• Docket Number: 46305.
• Citation: 12 N.W.2d 277,234 Iowa 151
• Parties: DALBEY BROS. LUMBER CO. v. CRISPIN et al.
• Court: Iowa Supreme Court

12 N.W.2d 277

234 Iowa 151

DALBEY BROS. LUMBER CO. v. CRISPIN et al.

No. 46305.

Supreme Court of Iowa

December 14, 1943

Guy A. Miller, of Des Moines, for defendants-appellants Harlan F. Crispin and Elizabeth M Crispin.

Gibson Stewart & Garrett and Wendell Gibson, all of Des Moines for plaintiff-appellee.

Ted Sloane, of Des Moines, for defendant-appellee E. W Ewell.

Lehmann, Hurlburt & Hossfeld, of Des Moines, for defendant and cross-petitioner-appellee O'Rourke Construction Materials Co.

J. Rudolph Hansen, of Des Moines, for defendant-appellee H. T. Rasmussen.

George F. Brooks, of Des Moines, for defendant and cross-petitioner-appellee Louis Zane.

WENNERSTRUM Justice.

Plaintiff, in an action in equity, sought personal judgment against the defendant owners of real property, and the contractor, who erected a residence and garage for them, for materials claimed to have been furnished the defendant owners and, in this action, also sought to foreclose a mechanic's lien filed by the plaintiff and asked that liens of other material men be held junior to that of plaintiff. Cross-petitions were also filed by some of the defendants who had furnished materials and supplies in the construction and completion of the residence and garage. The trial court entered a judgment in rem in favor of the plaintiff against the premises owned by the defendant owners of the real estate affected by the mechanic's lien filed by plaintiff in the amount of $724.67, with interest. The court also entered judgment in rem and established and confirmed the liens of O'Rourke Construction Materials Company and Louis Zane, establishing the priority of the liens of the named material men in the order named. The court denied the plaintiff and cross-petitioners any personal judgment against the defendants, Harlan F. Crispin and Elizabeth M. Crispin. Personal judgments were entered against E. W. Ewell, the contractor, in favor of plaintiff, and also in favor of O'Rourke Construction Materials Company and Louis Zane. The court affirmed the lien of H. T. Rasmussen but denied to him the right to have the property involved sold under his lien or to share in the proceeds of any sale because he had not asked for such relief. The defendants Harlan F. Crispin and Elizabeth M. Crispin have appealed from the decree entered by the trial court.

The appellants, Harlan F. Crispin and Elizabeth M. Crispin, his wife, are joint owners of a lot in a suburban portion of the city of Des Moines. They entered into an agreement with Ewell, a contractor, to build a house and garage on a lot owned by them. Lumber and materials for the construction of the improvements made on the Crispin lot were purchased from the plaintiff appellee by Ewell. It is claimed in the pleadings that Ewell acted as agent for the Crispins in the purchase of the materials. Testimony was introduced that the lumber and materials were delivered for the construction of the house and garage by the lumber company. A greater portion of the lumber and materials account was paid through financing plans made by the Crispins through joint arrangements with the contractor. The unpaid balance due plaintiff-appellee which involved some mill work and other materials, was in the amount of $724.67.

There was a balance due on the claim of the O'Rourke Construction Materials Company of $108.55 and this company filed a mechanic's lien. The balance due H. T. Rasmussen for materials and supplies, and for which a mechanic's lien was filed, was $180. The lien claim of Louis Zane, who also had furnished materials and supplies, was for a balance due in the amount of $66.

I. It is the contention of the appellants that the court erred in establishing and confirming the lien of Dalbey Bros. Lumber Company and they maintain that the mechanic's lien filed did not comply with the statutory requirements for the preservation of such a lien in that no verified statement was filed.

Our consideration of the appellants' claim that no verified statement was filed by the Dalbey Bros. Lumber Company necessitates the setting forth, in part, of their mechanic's lien. The lien proper was signed "Dalbey Bros. Lumber Company, by Robert T. Dalbey, Credit Manager", and the remainder of the lien that was filed is as hereinafter set forth:

"State of Iowa, Polk County, ss:

"I, Robert T. Dalbey, on oath depose and say that I am Robert T. Dalbey, Credit Manager of Dalbey Bros. Lumber Company whose name is affixed to the within statement for a Mechanic's Lien, as therein stated; that I have read the within statement, and know the contents thereof, and the statements and allegations therein made are true, as I verily believe.

"Robert T. Dalbey.

"Subscribed and sworn to before me by _____ this ___ day of ___, A.D.19___.

"__________

"Notary Public in and for *** Co. Iowa,

"State of Iowa, Polk County, ss:

"On this Tenth day of April, A.D.1941, before me, Ione Hedlund, a Notary Public in and for Polk County, Iowa, personally appeared Robert T. Dalbey, to me known to be the person named in and who executed the foregoing instrument and acknowledged that he executed the same as his voluntary act and deed.

"Ione Hedlund,

"(Seal) Notary Public in and for Polk County, Iowa."

Section 10277 of the 1939 Code provides that: "Every person who wishes to avail himself of a mechanic's lien shall file with the clerk of the district court of the county in which the building to be charged with the lien is situated a verified statement or account of the demand due him, after allowing all credits, ***."

It will be observed that a "person who wishes to avail himself of a mechanic's lien shall file *** a verified statement or account of the demand due him." The previously referred to claimed error necessitates our consideration of the question whether or not that portion of the lien heretofore quoted can and should be construed to have been "verified". It will also be observed that the notary certificate did not state that the person who had signed the statement as to the correctness of the mechanic's lien had subscribed his signature and that it had been sworn to before a notary. The form used by the notary was to the effect that the person who signed the statement "executed the foregoing instrument and acknowledged that he executed the same as his voluntary act and deed." The signature of the notary and her seal was attached to what may be referred to as an acknowledgment form. Under these circumstances was the mechanic's lien verified? It is our conclusion that the affiant, Robert T. Dalbey, in signing his name to the statement as to the correctness of the lien and account filed was, as is shown by the certificate itself, conscious of the fact that he was swearing to the correctness of the lien and account, and that the lien should not be held invalid because of the statement of the notary before whom the affiant appeared. This conclusion finds support in the statement in 1 Am.Jur., par. 13, p. 942, Affidavits, where it is stated: "*** If the attention of the person making the affidavit is called to the fact that it must be sworn to and, in recognition of this, he is asked to do some corporal act and he does it, the instrument constitutes a statement under oath, irrespective of any other formalities."

The statement found in the case of State v. Hulsman, 147 Iowa 572, 573, 126 N.W. 700, 701, although dealing with a different situation, seems quite applicable to the facts that are presented to us in this appeal. It is there stated: "*** The statute makes no general requirement as to the form of an oath. The purpose of an oath is to secure the truth, and hence any form thereof which is ordinarily calculated to appeal to the conscience of the person to whom it is administered, and by which he signifies that his conscience is bound, is sufficient. 27 Am. & Eng. Enc. of Law, 682; State v. Gay, 59 Minn. 21, 60 N.W. 676, 50 Am.St.Rep. 389; O'Reilly v. People, 86 N.Y. 154, 40 Am.Rep. 525; 2 Bouv. Law Dict. 320; 30 Cyc. 1416."

See also 39 Am.Jur. 499, par. 13, Oath and Affirmation, where it is stated: "While a large liberty is given to the form of the oath, some form remains essential. Something must be present to distinguish between the oath and the bare assertion. An act must be done and clothed in such form as to characterize and evidence it. This is so for the double reason that only by some unequivocal form could the sworn be distinguished from the unsworn averment, and the sanctions of religion add their solemn and binding force to the act. Hence, to make a valid oath, there must be in some form, in the presence of an officer authorized to administer it, an unequivocal and present act by which the affiant consciously takes upon himself the obligation of an oath." The holding in the case of Atwood v. State, 146 Miss. 662, 111 So. 865, 51 A.L.R. 836, 838, is authority for the statement heretofore quoted and the conclusions we have heretofore expressed.

We feel that the statement made in the case of Stoddard et al. v. Sloan 65 Iowa 680, 684, 685, 22 N.W. 924, 926, also has application in the present situation. It is there stated: "*** It is not denied, as we understand, that the affidavit and jurat would be presumptive evidence of what they purport to show, if the jurat expressly stated that the affidavit was subscribed and sworn to by Thomas J. Stone. The question to be determined is whether the jurat, notwithstanding Stone's name is not expressly in it, really shows the same thing. It shows that the affiadvit is subscribed and sworn to. Now, the affidavit purports to be Stone's and no one's else. A writing is notsubscribed, unless it is signed by the person whose obligation or other paper it purports to be. If some person other than Stone,...