51 Mo. App. 569 | Mo. Ct. App. | 1892
Rehearing
Plaintiff offered to prove that the affidavit was in fact properly sworn to. This he was not permitted to do. It was proper preliminary proof to an offer to attach the officer’s signature, and it was error to exclude it. Without showing that the paper was in fact sworn to, the officer could not, of course, be permitted to sign the jurat. The action of the court prevented plaintiff from showing that which entitled him to perfect the affidavit. Plaintiff was pursuing the right course when arrested by the court’s ruling. It is not going too far to say that, uninterrupted, he would have still pursued the proper course, and offered to have the officer sign. So we repeat that the officer •should attach his signature yet, if the aforesaid preliminary proof is made. We assume it as true for the purposes of the opinion, because it was offered and excluded.
The fact that our statute permits the affidavit to be made by some person other than the plaintiff is sufficient reason for the holding that it may be made on knowledge and belief when made by such other person. Phillips in his work on mechanics’ liens so .states the law, and in the case of Laswell v. Church, supra, such an affidavit passed without criticism in this respect. The motion is overruled.
Lead Opinion
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.