Missouri Valley Lumber Co. v. Weber , 43 Mo. App. 179 ( 1891 )

G-ill, J.

This is an action to enforce a mechanic’s lien, and the sole question is, as to the sufficiency of the affidavit appended to the account filed with the clerk of the circuit court, as required by that section of the mechanics’ lien law, known now as section 6709, Revised Statutes, 1889. The matters stated in the mechanics’ lien, so filed, are sworn to by J. B. Sullivan, but it is not stated on the face of the affidavit that Sullivan makes the same for, or on behalf of, the alleged lienholder, the said Lumber Company. The petition, however, filed by the plaintiff in the cause does set out that said Sullivan is the secretary, manager and agent of the corporation, and made the affidavit for and in its behalf.

At the trial below the defendant objected to the lien thus sworn, to,' on the one ground, to-wit, that it did not appear on the face of the affidavit that Sullivan made the. oath for the plaintiff Lumber Company. The statute requires (section 6709, supra ) that the lien, thus filed in the circuit clerk’s office, “be verified by the-oath of himself or some creditable person for him.” The point is made below, and renewed here, that, where a person other than the lienholder makes the affidavit, it should appear in the body thereof that the oath is made for or on behalf of the person filing the lien. The circuit judge seems to have decided that, since Sullivan’s relation to the Lumber Company amply appeared from the record, — that he was acting as manager, etc., and made the affidavit for the company, — the lien statement was sufficiently verified, and therefore overruled defendant’s objection. This holding, in our opinion, was correct. Under the attachment law it is provided, that “the affidavit shall be made by the plaintiff or some person for him,” etc. R, S. 1889, sec. 526. Construing this section, it has been repeatedly held in this state, that it need not be stated in the affidavit for attachment (where the oath is made by one other than the plaintiff) that the affiant makes oath for the plaintiff — that it is sufficient if suck appears from the whole record (meaning, we suppose, the record proper). Gilkeson v. Knight, 71 Mo. 403; Johnson v. Gilkeson, 81 Mo. 55; Irwin v. Evans, 92 Mo. 472. The petition in the cause is of the record proper, and in the petition here it appears that the affiant Sullivan was agent and manager for the party filing the lien, and for it made the affidavit to the lien. We regard this sufficient, and the court’s ruling admitting the lien was proper. We discover no reason why the same rule above applied to attachment affidavits is not equally applicable here.

Defendant’s counsel have cited some cases in other states — some of which at least seem in conflict with the view here taken. However we cheerfully follow the above analogous decision of our supreme court. In our opinion they consist more with reason and that fair and liberal construction of our mechanics’ lien law so frequently adopted by the .late decisions in this state. We indorse the views of the supreme court of Nebraska in a late case, quite in point. Reed v. Bagley, 38 N. W. Rep. 827.

The judgment of the circuit court is affirmed.

All concur.