125 Mo. 469 | Mo. | 1894
This is an action of ejectment in statutory form for the following parcel of land in Greene county, Missouri, to wit: “AH of the south half of the following described tract of land situated in the city of Springfield, commencing at a point twenty (20) rods south and thirteen (13) rods west of the northeast corner of section twenty-four (24) in township twenty-nine (29), in range twenty-two (22) west of the fifth principal meridian, being the northwest corner of a lot of ground sold by J. L. Robberson to Sarah Jones, thence sis (6) rods for a beginning point thirty-eight and one half (38 1-2) feet, thence south twenty (20) rods to the center of St. Louis street in the said city of Springfield, thence east thirty-eight and one half (38 1-2) feet, thence north to the beginning.” Ouster was laid in June, 1891. Judgment was rendered for defendant at the May term, 1892, from which plaintiff has appealed.
Plaintiff’s title is a sheriff’s deed based upon a transcript of a judgment rendered by L. G. Fath, a justice of the peace, within and for Campbell township, in Greene county, Missouri, in an action by S. W. McLaughlin against the defendant herein, George Schultz, to enforce a mechanic’s lien.
The lien filed in the office of the circuit clerk upon which the action was brought was signed and sworn to
By section 6709, Revised Statutes, 1889, every original contractor seeking a lien shall file a true and just account with the clerk of the circuit court “verified by the oath of himself or some credible person for him.”
The trial court gave the following instructions for defendant:
“The court declares the law to be that under' the law and the evidence plaintiff can not recover.”
“The court declares the law to be that the lien filed in the office of the circuit court is void, because the affidavit thereto is not made by S. W. McLaughlin or any agent or person in his behalf, and plaintiff can not recover in this action on the evidence produced,” to which plaintiff, by her counsel, duly excepted at the time, and thereupon the court found for the defendant, and plaintiff, in due time, filed her motion for new trial, which was overruled.- She appealed to this court.
I. The circuit court erred in admitting the affidavit filed with the clerk to impeach the validity of the lien.
The justice of the peace, had jurisdiction in the action brought to enforce the mechanic’s lien. R. S. 1889, sec. 6159. The statute does not require the fact of agency to appear on the face of the affidavit when made by another person for the party claiming the lien. It is a matter of proof to the court having jurisdiction to hear the cause, and when it renders its
It has been repeatedly held by this court that it was not necessary in an attachment case, that an agent for the plaintiff should disclose his means of knowledge or show his agency on the face of the affidavit. Gilkeson v. Knight, 71 Mo. 403; Burnett v. McCluey, 92 Mo. 230; Irwin v. Evans, 92 Mo. 472.
The lien- was not void, neither was the judgment enforcing it void, and in so holding and declaring in its instruction the circuit court manifestly erred, and the judgment is reversed and the cause remanded for a new trial in accordance with these views.
