Dorman v. Crozier

14 Kan. 224

• Court: Supreme Court of Kansas
• Decided: January 15, 1875
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

An affidavit made by an agent of another verifying a statement of a claim filed with the clerk of the district court under section 3 of the mechanic’s-lien law of 1871, (Laws of 1871, page 254,) for the purpose of procuring a mechanic’s lien on certain real estate, should be sworn to positively. (See Atchison v. Bartholow, 4 Kas., 124; Ex parte The Bank of Monroe, 7 Hill, 177.) An affidavit for such a purpose, made by such an agent, stating that “the facts as above set forth are true and correct, according to the best of his [the agent’s] knowledge and belief,” without showing that he had any knowledge upon the subject, is not sufficient.

Where an affidavit made in such case is defective, it can be amended only by attaching a sufficient affidavit to the statement within the time allowed by law for filing the statement with the clerk. Code, § 139.-

It is error to tax attorney-fees in a foreclosure suit unless the mortgagor has stipulated to them. (Coburn v. Weed, 12 Kas., 182; Foote v. Sprague, 13 Kas., 155.)

This case will be remanded to the court below with the order that the judgment of the court below be modified by striking out the amounts allowed as attorney-fees to A. Crozier & Co., and to V. C. Jarboe. In other respects the judgment of the court below will be affirmed.

All the Justices concurring.