In re Boner

• Decision Date: 09 November 1910
• Docket Number: 1,516.
• Parties: In re BONER.
• Court: U.S. District Court — Northern District of Ohio

189 F. 93

In re BONER.

No. 1,516.

United States District Court, N.D. Ohio, Western Division.

November 9, 1910

L. F Conway and W. P. Duffy, for petitioners.

Thomas Mulcahy, for bankrupt.

J. R Linthicum and C. R. McComb, for trustee.

KILLITS District Judge.

This case is before the court upon a petition by a creditor to review the order of the referee ascertaining the priority of liens. The question as certified by the referee is as follows:

'The bankrupt was the owner of several parcels of real estate among which was inlot No. 194, in Napoleon, Ohio. Said real estate has all been sold by the trustee and a meeting was held to determine priorities among lienholders. Leonhart Bros., of Napoleon, are claiming the first lien upon said inlot No. 194, and C. W. fisher, a subsequent lienor, contends that the lien of said Leonhart Bros. is null and void for the reason that the notice required by section 3185, R.S. of Ohio, was not given.

'The questions presented are: (1) Was there any notice of an kind? (2) If there was verbal notice, was that sufficient?'

The referee answered both of these questions in the affirmative, and sustained the lien of Leonhart Bros., which depended upon a verbal notce, if any.

Whether or not verbal notice was given depends upon the consideration of conflicting testimony. The referee had the witnesses before him and was better able to judge of their respective credibilities than is the court on review, and we are not, for that reason, disposed to disturb his finding of fact; yet in the transcript it would appear that the more convincing evidence suggested that a verbal notice to the debtor was in fact given.

We think, also, that the referee was right in determining that, under the statute in question, a verbal notice was sufficient. The statute, which is now section 8315, General Code, provides:

'Such person so filing the affidavit herein provided shall, within thirty days thereafter, notify the owner of the property, his agent or attorney, that he claims such lien, and, if he fail to do so, the lien so secured shall be null and void.'

The word 'notify,' as generally used, does not imply the use of writing. It means simply to convey information knowledge, or notice, in whatever way. Words of a statute are to be construed according to the ordinary usage and are to be given their ordinary and general significance, unless there is found in the statute itself or...