Harper v. J & C. Trucking & Excavating Co., Inc.

• Decision Date: 14 September 1979
• Citation: 374 So.2d 893
• Parties: In re Albert HARPER, Individually, and d/b/a Albert Harper Construction Co., et al. v. J. & C. TRUCKING AND EXCAVATING CO., INC., et al. Ex parte R. & T. Construction Co., Inc. 78-226.
• Court: Alabama Supreme Court

Page 893

374 So.2d 893

In re Albert HARPER, Individually, and d/b/a Albert Harper Construction Co., et al. v. J. & C. TRUCKING AND EXCAVATING CO., INC., et al.

Ex parte R. & T. Construction Co., Inc.

78-226.

Supreme Court of Alabama.

Sept. 14, 1979.

Petition for Writ of Certiorari to the Court of Civil Appeals, 374 so.2d 886.

Mayer W. Perloff, Mobile, for petitioners.

Alphonse Maples, Jr., Chase R. Laurendine, Mobile, for George D. Knapp Contracting, Inc., respondents.

PER CURIAM.

Writ quashed as improvidently granted.

TORBERT, C. J., and MADDOX, JONES, ALMON, SHORES and BEATTY, JJ., concur.

BLOODWORTH, FAULKNER and EMBRY, JJ., dissent.

EMBRY, Justice (dissenting):

I respectfully dissent. This is an interpleader filed by Aluminum Corporation of America (ALCOA). Conflicting claims were asserted against the fund paid into the trial court by ALCOA.

Harper Construction Co. (Harper) and Knapp Contracting Inc. (Knapp), each filed claims against the deposited fund asserting they had materialmen's liens. R. & T. Construction (R. & T.) asserted: (1) it was the assignee of J. & C. Trucking and Excavating Co. (J. & C.), and (2) it had a paramount right to the interpleaded funds. Harper, Knapp, and R. & T. each moved for summary judgment. The trial court granted summary judgment in favor of R. & T. and against Knapp and Harper.

Harper and Knapp appealed to the Court of Civil Appeals, each claiming the trial court erred in granting summary judgment against them. The appellate court held the trial court committed no error in granting summary judgment against Harper, but erred in finding that Knapp did not have a valid materialman's lien and, thus, erred in granting summary judgment against Knapp. R. & T.'s petition for writ of certiorari to the Court of Civil Appeals was granted in order that this court review the appellate court's finding that Knapp had a valid materialman's lien entitling it to a portion of the interpleaded fund.

The sole issue is whether Knapp's statement of lien was properly verified as required by Code 1975, § 35-11-213. The Court of Civil Appeals held Knapp's verification was sufficient. I disagree.

The verified statement, the center of this controversy, reads, in pertinent part, as follows:

"Before me, the undersigned authority, personally appeared George D. Knapp, who being duly sworn both depose and say:

"That he is the President of George D. Knapp Contracting, Inc., That he is informed and believes and upon such information and belief says that the facts set forth in the foregoing statement of lien, are true and correct to the best of his knowledge and belief." (Emphasis supplied.)

Code 1975, § 35-11-213 states that:

"It shall be the duty of every person entitled to such lien to file in the office of the judge of probate of the county in which the property upon which the lien is sought to be established is situated, a statement in writing, Verified by the oath of the person claiming the lien, Or of some other person having knowledge of the facts, * * *." (Emphasis supplied.)

The quoted language of § 35-11-213 clearly sets up two classes of persons who can verify a materialman's lien. McGeever v. Harris and Sons, 148 Ala. 503, 41 So. 930 (1906). The first is made up of claimants. The claimant who verifies the lien statement does not have to include a statement that he has knowledge of the facts. McGeever, supra. The second class consists of those other persons having knowledge of the facts. McGeever, supra. The latter must include a statement within their affidavit that they have personal knowledge of the facts. McGeever, supra; Globe Iron Roofing and Corrugating Co. v. Thatcher, 87 Ala. 458, 6 So. 366 (1888); Long v. Pocahontas Coal Co., 117 Ala. 587, 23 So. 526 (1898).

The purpose of requiring a statement that an affiant has personal knowledge of the facts stems from the serious nature and effect of a materialman's lien. The statutes providing for such liens are in derogation of the common law and must be strictly construed. Hartford Accident & Indemnity v. American Country Clubs, 353 So.2d 1147 (Ala. 1978). Furthermore, a materialman's or mechanic's lien is not perfected until every statutory requirement creating the lien has been complied with, and the lien's enforcement is dependent on full compliance with the technical requirements of the statute. Tucker v. Trussville Convalescent Homes, Inc., 289 Ala. 366, 267 So.2d 438 (1972).

In Globe Iron, supra, this court made it clear that an officer of a corporation must verify the lien statement by stating he has knowledge of the facts embraced in the...