Indiana Quarries Co. v. Simms, 158 Ky. 415

Indiana Quarries Co. v. Simms

158 Ky. 415 | Ky. Ct. App. | 1914

Opinion op the Court by

Judge Hannah

Affirming.

*416The Indiana Quarries Company sued Jos. C. Simms and the Taylor National Bank in the Taylor Circuit Court, to recover the sum of $516.83, claimed to he due to it from said Simms for a quantity of building stone, and asserting and seeking the enforcement of a lien against the property of the defendant bank, the said stone having been used by Simms in the construction of a building for said bank. Judgment went against defendant Simms by default; and defendant bank’s demurrer to the petition being sustained by the court, and plaintiff company declining to plead further, its petition was dismissed; whereupon it appeals.

1. One ground of objection to the sufficiency of the petition relied on by appellees, is that, while it is alleged in the petition that the statement requiréd by Section 2468, Kentucky Statutes, to be filed in the office of the clerk of the county court was sworn to as required by the statute, yet the copy of the said statement filed with the petition as an exhibit, contradicts this allegation.

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.

*417Other objections to the sufficiency of the petition are suggested by appellee, but as the one mentioned is fatal, it is not necessary to pass upon the others.

Judgment affirmed.