Lyons v. Howard

• Decision Date: 31 August 1911
• Citation: 117 P. 842,16 N.M. 327,1911 -NMSC- 039
• Parties: LYONS v. HOWARD et al.
• Court: New Mexico Supreme Court

117 P. 842

16 N.M. 327, 1911 -NMSC- 039

LYONS v. HOWARD et al.

Supreme Court of New Mexico

August 31, 1911

Appeal from District Court, Curry County; before Chief Justice Pope.

Suit by Thomas Howard and another, a copartnership, doing business as Howard & Destree, against J. D. Lyons. From a decree for plaintiffs and an order denying a motion for a new trial defendant appeals. Affirmed.

H. W Williams, for appellant.

Bowman & Dunlavy, for appellees.

WRIGHT J. (after stating the facts as above).

Appellant assigns four errors, none of which assignments would have stood the test of an exception duly taken thereto. The only question attempted to be raised by such defective assignments of error, however, being practically a jurisdictional one, we will consider the same.

Is the verification sufficient under the provisions of our statute? Section 2221 of the Compiled Laws of New Mexico of 1897 provides: "Every original contractor, within ninety days after the completion of his contract and every person, save the original contractor, claiming the benefit of this act, must within sixty days after the completion of any building, improvement, or structure, or after the completion of the alteration or repair thereof, or the performance of any labor in a mining claim, file for record with the county recorder of the county in which such property or some part thereof is situated, a claim containing a statement of his demands, after deducting all just credit and offset, with the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed, or to whom he furnished the materials, with a statement of the terms, time given and condition of his contract, and also a description of the property to be charged with the lien, sufficient for identification, which claim must be verified by the oath of himself or of some other person."

The courts of New Mexico are committed to the doctrine that "the mechanic's lien law is remedial in its nature and equitable in its enforcement and is to be construed liberally." Ford v. Springer Land Ass'n et al. 8 N. M. 37-48, 41 P. 541, 544, affirmed 168 U.S. 513, 18 S.Ct. 170, 42 L.Ed. 562. This case reversed the earlier case of Finane v. Hotel Co., 3 N.M. (Gild.) 411, 5 P. 725. It may be taken as axiomatic that, if there is any particular form of verification required by the M. L. Law, such form must be followed.

It also follows, in the absence of any statutory requirement as to the form of the verification; that a substantial compliance therewith is all that is required. Minor v. Marshall, 6 N. M. 199, 27 P. 481; Phillips on Mechanics' Liens (2d Ed.) § 366a; Boisot on Mechanics' Liens, § 452. No particular form of verification is required by our statute, nor is it specifically required thereby that the verification shall be true to the knowledge of affiant.

Nor is it necessary in this territory that there should be an affidavit to the claim of lien. "It is not necessary in this territory that there should be an affidavit to the claim. It is sufficient if the claim is signed by the party, and that the notary or other proper officer, under his signature and seal, says that it is sworn to by the person signing it. But a want of a verification, or of a sufficient verification, is a defect which goes to the whole claim and cannot be amended." Minor v. Marshall, cited supra. It is to be noted that the case last cited was decided by this court under the earlier rule of strict construction laid down in the case of Finane v. Hotel Co., cited supra, which this court definitely repudiated in the later case of Ford v. Springer Land Ass'n et al., cited supra. In support of his contention that the verification is not sufficient, appellant cites the following cases: Dorman v. Crozier, 14 Kan. 224; City of Atchison v. Bartholow, 4 Kan. 124; Western Plumbing Co. v. Fried, 33 Mont. 7, 81 P. 396, 114 Am. St. Rep. 799; Long v. Pocahontas Coal Co., 117 Ala. 587, 23 So. 526; Florence Bldg. Ass'n v. Schall, 107 Ala. 531, 18 So. 108; Cook v. Rome Brick Co., 98 Ala. 409, 12 So. 918; Globe Iron Co. v. Thacher, 87 Ala. 458, 6 So. 366. Considering the four Alabama cases first, we find that the Alabama statute requires that the statement or claim of lien shall be verified by the oath of the claimant or some other person having knowledge of the facts. Code Ala. 1886, § 3022. No such restriction appears in our statute. The decision in the case of Merchants' Bank v. Hollis, 37 Tex.Civ.App. 479, 84 S.W. 269, was given under the rule of strict construction to which the courts of Texas have consistently held. In Montana the claim of lien must be verified by affidavit. Section 2131, Code Civ. Proc. 1895 (section 7291, Rev. Codes). An examination of the case of Western Plumbing Co. v. Fried, 33 Mont. 7, 81 P. 394, 114 Am. St. Rep. 799, cited by appellant, disclosed that the holding in that case to the effect that a statement of lien on behalf of a corporation, verified by its president on information and belief, was insufficient, is based upon the holding in the case of Benepe-Owenhouse Co. v. Scheidegger, 32 Mont. 424, 80 P. 1024, that a complaint verified upon information and belief was not an affidavit. The first Kansas cases cited, namely, City of Atchison v. Bartholow, 4 Kan. 124, holds that an application for an injunction verified on information and belief is not an affidavit within the statute requiring such application to be on affidavit. The case of Derman v. Crozier, 14 Kan. 224, also cited by appellant, like the Montana case, cited supra, is based upon the holding in the earlier case that a verification on information and belief was not an affidavit. It is apparent, therefore, that none of these cases have any bearing upon the question in this jurisdiction, where there is no particular form required, where no affidavit is necessary, and where the rule of liberal construction applies.

The verification of a claim of lien is not for the purpose of proving the lien. The statement of lien, verified as required by law, and recorded, is a mere notice that the claimant intends to avail himself of his right to a lien. As an evidence of his good faith in the matter, he must verify same on his own oath, or the oath of some other person. Nofziger Lumber Co. et el. v. Solomon et al., 13 Cal.App. 621, 110 P. 474. This court in...