40 W. Va. 553 | W. Va. | 1895
The bill in this case was filed in the Circuit Court of Morgan county for the enforcement of a mechanic’s lien, under-chapter 75 of the Code. There was a demurrer to the bill, which was sustained by the court; and the plaintiff expressing no desire to amend, the bill was dismissed, and this appeal has been allowed.
The decree sustaining the demurrer is the one error complained of. The main ground of demurrer was that the mechanic’s lien had not been sworn to, and the oath certified, as required by statute. The bill alleges that the plaintiff made the affidavit required by statute, and on the 29th day of J une, 1894, he had the same admitted to record in the clerk’s office' of the County Court of Morgan county. A copy of the mechanic’s lien, with the affidavit therein, is filed as an exhibit with the bill.
Under the provision of section 4, chapter 75, of the Code, the party claiming a lien “shall within sixty days after lie-ceases to labor on or furnish material or machinery for such building or other structure, file with the clerk of the county court of the county, in which the same is situated, a just and true account of the amount due him, after allowing all credits, together with a description of the property intended to-be covered by the lien, sufficiently accurate for identification, with the name of the owner or owners of the property, if known, which account shall be sworn to by the person claiming the lien, or some person in his behalf.”
The affidavit is as follows: “District of Columbia, City of Washington — ss.,”—and signed, “James Lockhead,” and concludes with the following certificate: “Subscribed and sworn to before me this 28th day of June, A. D. 1894. J. R.
The case in hand has been argued by counsel as depending upon the true construction of section 31'of chapter 130 of the Code, regulating certain matters of evidence, which is as follows: “In any case in which an oath might be administered by, or an affidavit made before, a justice, the same may be done by or before a county commissioner, notary public, or a commissioner appointed by the governor, or by a court or the clerk thereof; or in case of a survey directed by a court in a case therein pending, by or before the surveyor directed to execute said order of survey. An affidavit may also be made before anyofficer of another state or country authorized by its law to administer an oath, and shall be deemed duly authenticated if it be subscribed by such officer, and there be annexed to it a certificate of the clerk or other officer of a court of record of such state or country, under an official seal, verifying the genuineness of the signature of the first mentioned officer, and his authority to administer an oath.” It must be read in connection with section 4 of chapter 50, which reads as follows: “Where any oath may lawfully be administered, or affidavit or deposition taken within any county, it may be done by a justice therein, unless otherwise expressly provided by law.”
1. It will be seen that section 31 of chapter 130 seems to be divided into two clauses, providing for 'two classes of cases. This law had its inception as section 3 of chapter 65 of the act of March 6,1841 (see Acts 1840-41, p. 76) which reads as follows: “That in all cases when by law the affidavit of any person residing in another state of the United States or any district or territory thereof, or in any foreign country is required or may be necessary in any judicial proceeding in this state, the same shall be deemed duly and properly authenticated if subscribed and taken before some officer of such state, district or territory, or foreign country, authorized by the laws thereof to administer an oath or affirmation, and shall have annexed thereto a certificate of the clerk or other proper officer of a court 'of record of such
2. Not only does the history of the enactment in question tend to show that the first clause of section 31 of chapter 130 is confined to authentication of oaths taken and certified by state and county officers, and that the second clause is confined to the mode of authentication of oaths taken and certified by officers of all other states and countries including the District of Columbia, but I think such is the fair reading and meaning of the section, by its own language and terms. For we see that all the officers mentioned in the first clause are unequivocally state or county officers, unless it be the notary public, and the court or the clerk thereof; and as to those there can be no doubt, when we consider' the history of the enactment, and its present apparent classification of domestic and foreign officers, but especially whenweconsiderthattheextentoftheauthority of the justice is made the measure of the authority of all the others named in this first class, for his authority, we see by section 4 of chapter 50, is limited to his state and county, and so we must regard the notaries public and courts and clerks mentioned as being state and county officers and tribunals; and the commissioner appointed by the governor for another state is, of course, an officer of this state.
3. The reason and purpose of the law, as founded upon the state of facts leading to the enactment of the requirement of an additional and supplementary certificate of authentication in the latter class of cases which does not exist in the other, also tend to justify the same construction. Heretofore the general rule prevailed that the law, written or unwritten, of a foreign state or country, had to be proved as a fact; but now, by section 4 of chapter 13 of the Code,, the courts of this state shall take judicial notice of the' laws of another state and country, whenever material, and
But the bill alleges that the plaintiff made the affidavit required by statute. Must this allegation be taken to be true on demurrer, when the copy of the paper filed and recorded as his mechanic’s lien is exhibited as a part of his bill, and may show such allegation not to be true? Such documentary evidence exhibited with and made part of the bill must at some time be read, and its legal effect, and the fact it proves, be determined by the court. The modern rule is that this may be done in passing upon the demurrer, and the court is not bound to accept as true for such purpose the allegation contained in the bill as to what fact the paper proves, or what is its effect in law. See 1 Beach, Mod. Eq. Prac. § 229; Interstate Land Co. v. Maxwell Land-Grant Co., 139 U. S. 569 (11 Sup. Ct. 656); Dillon v. Barnard, 21 Wall. 430; Lea v. Robeson, 12 Gray 280.
The court will, on demurrer, construe the instrument for the pleader. See North v. Kizer, 72 Ill. 172. In our practice it is no longer an open question. Bias v. Vickers, 27 W. Va. 456. This leads to no inconvenience, as the court may, in one or more ways, when there is proper occasion for it, hold the ultimate decision of the demurrer in suspense until a further or the final hearing. See 1 Barb Ch. Prac. 345; 4 Minor Inst. 1146; Pryor v. Adams, 1 Call 391. For collection of authorities, and discussion of general subject, see Kester v. Lyon (20 S. E. Rep. 934), 40 W. Va. 161.
Another point made by counsel for appellant is: “Conceding for the sake of argument, that the certificate annex
Where the statute prescribes no method of verification of the signature of the officer before whom the affidavit is made, or of his authority to administer the oath, or if, when a method is mentioned, it does not appear to be restrictive or exclusive, the common-law mode of proof must be in the one case may be in the other resorted to. The common-
In the case of Van Ness v. Bank (1839) 13 Pet. 17, the court followed the case of Connelly v. Bowie (1823) 6 Har. & J. 141, in holding that where the certificate of acknowledgment of a deed did not state that the persons by whom it was taken were justices of the peace, and there was no evidence in the record to prove their official character, the certificate would be inadmissible, but went further, and held expressly, that evidence aliunde was admissible to supply the omission in the certificate indorsed on the deed. In the case of Bennett v. Paine (1838) 7 Watts 334, the certificate of acknowledgment contained no assertion of magisterial character. It was not affirmative of either office or place, and the court held that proof of the existence of the magisterial character could be supplied by evidence aliunde, and by the common-law methods, as there was no substitution of statutory for the common-law method of proof. This is based upon the general doctrine that where the statute is silent the common-law speaks, but the general rule is equally well settled — that where the statute comes in the common-law is, to that extent, displaced.
Here the statute prescribes a method of giving notice to all whom it may concern, by requiring it to be in writing, and made matter of record, so that the lien created may not be secret, and the inherent nature of the transaction necessarily implies that' such method is intended to be exclusive.
Where a statute declares that the notice to create a lien shall be verified before filing, it is essential to the creation of the lien that it should be sworn to in the manner prescribed. The want of verification, or of sufficient verification, is a defect which goes to the whole claim, and can not be amended. “A claim for a mechanic’s lien, when filed, should have been verified; and it should appear upon its face to have been.verified, before it can be made the basis
Our opinion is that in such case what is essential to create the lien, and give notice thereof to the world at large of its being filed for record as such lien, does not exist, efficiently to that end, unless it appears on the face of the paper; that the verification of the genuineness of the signature-of the foreign officer before whom the affidavit was made, and his authority to administer an oath, does not in this-case so appear by such certificate of the clerk or other officer of a court of record of such state or country, as section 31 of chapter 130 of the Code requires; that the decree sustaining the demurrer was therefore right; and the plaintiff declining to amend, but electing to stand by his bill as he made it, there was nothing the court could do, but dismiss it as on final hearing. Decree affirmed.