Laswell v. Presbyterian Church of Jefferson City

• Decision Date: 31 July 1870
• Citation: 46 Mo. 279
• Parties: B. F. LASWELL, Plaintiff in Error, v. THE PRESBYTERIAN CHURCH OF JEFFERSON CITY, MO., M. D. FAULK, AUSTIN A. KING, et al., Defendants in Error.
• Court: Missouri Supreme Court

46 Mo. 279

B. F. LASWELL, Plaintiff in Error,

v.THE PRESBYTERIAN CHURCH OF JEFFERSON CITY, MO., M. D. FAULK, AUSTIN A. KING, et al., Defendants in Error.

Supreme Court of Missouri.

July Term, 1870.

Error to First District Court.

E. L. Edwards & Son, for plaintiff in error.

I. The thirty days' clause is confined to journeymen and daylaborers. There is no pretense that plaintiff was a day-laborer or a journeyman.

II. The certificate of the clerk meets all the requirements of the law. The law does not require an affidavit to the claim. (Smith's Ex'rs v. Benton, 15 Mo. 374; Sess. Acts 1849, § 2.)

III. The Circuit Court should have permitted the clerk to amend his jurat nunc pro tunc. (Bergesch v. Keevil, 19 Mo. 127; Budd v. Allen, 21 Mo. 21.) It was too late to object to the verification of the lien after the case was called for trial. (Huntington v. Howse, 22 Mo. 365; Cornelius et al. v. Grant et al., 8 Mo. 64.)

King & Bro. and Ewing & Smith, for defendants in error.

I. The Circuit Court did right in excluding this pretended lien. The notice of claim served upon defendants by plaintiff was for work and labor done, and the pretended lien shows the claim to be for work and labor done and materials furnished. The defendants had no notice that plaintiff had a claim for materials. They were entitled to such notice (Wagn. Stat. 911, § 19), and might have been very well misled by this one given.

II. The plaintiff having failed to give notice of his claim for materials furnished, he therefore has no lien for materials; and having combined in his account a claim for which he has no lien, with that for which he has a lien (if, in fact, he has a lien for anything), he thereby lost the benefit of the act entirely. (17 Mo. 271.)

III. The fact that the lien is not verified by the oath of the plaintiff, nor by any other person for him, was sufficient to authorize the court to exclude it.

WAGNER, 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 same. Laswell filed his lien as a sub-contractor, and attempted to enforce it by legal process; but upon a trial in the Circuit Court, under certain rulings, he took a nonsuit, which failing to have set aside, and the District Court affording him no relief, he now prosecutes his writ of error.

In his notice claiming the lien, after describing the property, he states that his demand is for $154, which is due him from M. D. Faulk, 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 Faulk, 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 Faulk, 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 the facts set forth in the above statement and the above account are true, to the best of his knowledge and belief.

C. 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 him. 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 the party making it, the statute does not in this matter seem to require an affidavit in express terms. It only demands that the statement shall be verified by oath.

Where a defendant, in his answer under the...