Hill Clutch Co. v. Indep. Steel Co. Of Am..
| Decision Date | 12 May 1914 |
| Citation | 74 W.Va. 353 |
| Parties | Hill Clutch Company v. Independent Steel Company of America et al. |
| Court | West Virginia Supreme Court |
1. Affidavits Authority of Foreign Officer Authentication.
An affidavit purporting to have been made before a notary of another state, to which there is not annexed a certificate authenticating the genuineness of the notary's signature and his power to administer oaths, as required by Code 1913, Ch. 130, Sec. 31, is insufficient to perfect a claim of mechanic's lien. (p. 354).
2. Mechanics' Liens Claims Insufficient Verification.
A claim of mechanic's lien having such insufficient verification will not prove the lien and warrant a decree for its enforcement when the validity of the lien is denied, even though specific exception is not taken to the insufficiency of the affidavit, (p. 355).
Appeal from Circuit Court, Wayne County.
Bill by the Hill Clutch Company against the Independent Steel Company of America and others. Decree for plaintiff, and defendant Rockwood Sprinkler Company appeals.
Reversed in part. Affirmed in part.
Warth & McCullough and Orville J. Taylor, for appellant.
Holt, Duncan & Holt and Williams, Scott & Lovett, for appellees.
The decree appealed from is one adjudging liens on the property of the Independent Steel Company of America, fixing the order of their priority, and directing a sale for their payment. Appellant, the Rock wood Sprinkler Company, complains that proper place has not been given to its mechanic's lien, which has been put subsequent to a large mortgage over which appellant contends its lien should have priority.
Appellees, the steel company and the mortgagees, make a cross-assignment submitting that appellant has no valid mechanic's lien and that the decree is erroneous in recognizing appellant's claim of lien at all. If this cross-assignment is well taken, the question of priority brought here by appellant is immaterial. Logically, therefore, consideration of the crossassignment comes first.
The charge of invalidity against appellant's claim of a mechanic's lien is that the affidavit thereto, purporting to have been taken before a notary in the State of* Illinois, is not authenticated, and hence amounts to no verification of the claim of lien as required by statute.
To the affidavit there is not annexed a certificate of the clerk or other officer of an Illinois court of record under an official seal, verifying the genuineness of the notary's signature and his authority to administer an oath. By our statute an affidavit made before an officer of another state must bear such a certificate. Code 1913, Ch. 130, Sec. 31. If it does not bear such certificate it is not duly authenticated and is not in fact am affidavit. The very terms of the statute cited requirethe annexation of such a certificate to make the affidavit complete and effective. So appellant's claim of lien indeed lacks an affidavit and has not been verified The claim of lien does not show that it has been "sworn to" as the statute authorizing the creation of a mechanic's lien demands. Code 1913, Ch. 75, Sec. 4. On its face the evidence in this particular does not appear. It therefore can not serve as notice of a mechanic's lien nor as evidence of such a lien. For, the oath is an essential element of the creation of the lien and must be in writing as a part of the paper which is filed for record for the purpose of claiming the lien. Without full written and recorded evidence that the oath has been taken and certified as required by our statutes there is no substantial compliance with the law whereby a mechanic's lien may be perfected and held against the property of another. Mechanic's liens are purely creatures of the statute and every step prescribed to perfect such liens must be pursued in order to make them a charge against the property of the owner. This is fully established by our decided cases.
An affidavit purporting to have been made before an officer of another state, to which there is not annexed a certificate" authenticating the genuineness of the officer's signature and his power to administer oaths, as required by Code 1913, Ch. 130, Sec. 31, is insufficient to perfect a claim of mechanic's lien. Lockhead v. Berkeley Springs Waterworks & Improvement Co., 40 W. Va. 533; Tygart Valley Brewing Co. v. Vilter Mfg. Co., 184 Fed. 845. The reasons and authorities justifying this holding are fully presented by the opinions in the cases cited. Time and space should not be consumed in reiterating them here. The holding is not technical. It is the enforcement of plain statute as to the making of affidavits. It is the enforcement of statutory law embracing a...
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