158 Ky. 415 | Ky. Ct. App. | 1914
Opinion op the Court by
Affirming.
The certificate appended to the statement recites that the Indiana Quarries Company by its second vice-president “acknowledged the execution of the foregoing notice of lien.”
This is not sufficient to show that the statement was sworn to as required by law. The term “sworn to” implies that the subscriber shall have declared upon oath the truth of the statement to which his name is subscribed. This the certificate fails to show.
In the case of Schenectady Contracting Company v. Schnectady R. Co., 106 N. Y. App. Div., 336, 94 N. Y. Supp., 401, the notice of lien was not verified, but in place of the verification, the plaintiff attached a certificate of acknowledgment thereto. The court held that this notice did not comply with the statute requiring it to be verified. This we think the correct rule.
The allegation of the petition that the statement was sworn to, will not prevail against the exhibit filed with the petition, which shows that it was not sworn to, but merely acknowledged. The exhibit controls, notwithstanding contrary allegations in the pleading. Kernan v. Carter, 104, S. W., 308, 31 R., 865.
The lower court, therefore, properly sustained the demurrer to the petition, for the statement or notice of lien does not conform to the statute, and consequently is insufficient to create a lien thereunder.
Judgment affirmed.