Finley v. West

51 Mo. App. 569, 1892 Mo. App. LEXIS 480

Opinions

Ellison, J.

This is an action to enforce a mechanics’ lien. On account of the trial court ruling that the affidavit to the lien paper was insufficient, plaintiff was compelled to suffer a nonsuit. Failing in his effort to have the same set aside he brings the case here. The affidavit was made by plaintiff’s attorney and agent. It is as follows: ■

“State of Missouri, “County of Clay.

“J. E. Lincoln, agent and attorney for B. P. Finley, being duly sworn, on his oath says that he believes the foregoing is a just and true account, etc.

“(Signed) _ James E. Lincoln.

“Subscribed and sworn to before me this sixth day of October, 1890.

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The objection to the affidavit is that it does not show the oath was administered, since there is no officer’s signature to the jurat. And, second, that the affidavit purports to be upon the belief of affiant instead of his knowledge. Neither of these objections is sound. The affidavit purports upon its face to be the oath of the affiant. He signs the statement which he says is made on. his oath. The fact that .the jurat is not signed by the officer, shown to be an oversight, ought not to nullify the paper. He should be permitted to attach his signature yet.

As to the remaining objection, we are of the opinion that an oath on the belief of the affiant is a substantial compliance with the lien law. Phillips on Mechanics’ Liens, sec. 366a. The case of Laswell v. Church, 46 Mo. 279, cited by plaintiff’s counsel, sustains their contention on this appeal, and we will reverse the judgment and remand the cause.

All concur.