The A. Bentley Sons Company was awarded a contract with the Department of Highways for the construction of a certain roadway. They leased certain equipment from the Azola Equipment Rental Company who, in August of 1956, attempted to file a lien with the highway department against money to be paid under the contract to the Bentley company. The A. Bentley Sons Company instituted an action in the Common Pleas Court of Franklin County to have the Director of Highways pay over to it the sum withheld and to determine the rights of the Azola Equipment Rental Company therein.
At the hearing before the court the Azola Equipment Rental Company offered into evidence certain exhibits relating to the filing of their lien which were refused admission by the court. The court also overruled a request for an opportunity to present oral testimony with respect to such statements and to correct defects found by the court in such exhibits. Parties seem to agree that if the appellants, Azola Equipment Rental Company and Maurice Kane, have any lien upon the funds, it must be based upon Section 1311.26 of the Revised Code of Ohio. Under that section a "sworn and itemized statement of the amount and value of such labor performed * * * material, fuel, or machinery furnished" was to be filed with the public authority as a prerequisite to perfecting the lien.
From a review of the exhibits offered in the trial court, it appears that the appellants sent to the Director of Highways on or about August 29, 1956, a letter designated as a lien-claim, with six enclosures, three completed forms of "notice of lien-claim pursuant to Section 1208, General Code of Ohio," and an itemized statement in triplicate of equipment and material furnished to The A. Bentley Sons Company.
On August 29, 1956, the credit examiner of the highway department *Page 388 of Ohio returned the papers to the Azola Equipment Rental Company with the following letter:
"Gentlemen:
"I wish to acknowledge notice of your intention to file a lien against the A. Bentley Sons Co. in connection with the construction of Project No. 259, Lucas County Contract No. 12276.
"This must be notarized as you will see from the attached excerpt from the Ohio law on this subject. Kindly return properly executed."
The papers were returned to the highway department on August 31, 1956. At the bottom of the covering letter there was written "Lucille E. Taylor, Wayne Co., Comm. expires 6-19-60." At the bottom of the lien form was written "8-30-56" and under that "Lucille E. Taylor, Notary Public, Wayne Co., Exp. 6-19-60."
The trial court held that neither these nor other papers offered into evidence established a lien and were not admissible as evidence, and that the defects therein could not be cured by amendment or parol evidence; and therefore, overruled a motion of the defendant to present oral testimony. Section 1311.26 of the Revised Code speaks of a sworn statement, and the trial court was faced with the problem of whether or not the exhibits offered constituted a sworn and itemized statement as required by that section. The objection was raised by The A. Bentley Sons Company, appellee, and the appellants felt they were entitled to offer all testimony on the issue as to the admissibility of the sufficiency of the statements. Since the statement was itemized, the objection was no doubt sustained on the grounds that they were not sworn statements. The particular section does not give us any guide to follow as to the form of the sworn statement but it seems to call for a written declaration under oath, which is a definition of an affidavit given in Section 2319.02 of the Revised Code. It would, therefore, seem that an affidavit was called for and that the rules in regard to the affidavit would govern the admissibility in the trial court. Section 2319.04 of the Revised Code states:
"An affidavit may be made in or out of this state before any *Page 389 person authorized to take depositions, and unless it is a verification of a pleading it must be authenticated in the same way as a deposition."
Section 2319.23 of the Revised Code governs the authentication of a deposition and states as follows:
"Depositions taken pursuant to Sections 2319.05 to 2319.31, inclusive, of the Revised Code, by a judicial or other officer authorized by such sections to take them, having a seal of office, whether resident in this state or elsewhere, shall be admitted in evidence upon the certificate and signature of such officer, under the seal of the court of which he is an officer, or his official seal, and no other or further act of authentication is required. If the officer before whom they are taken has no official seal, the depositions, if not taken in this state, must be certified and signed by such officer, and further authenticated, either by parol proof adduced in court, or by the certificate and seal of the Secretary of State or other officer who is the custodian of its great seal, or the certificate and official seal of the clerk of any court of the state, where taken, attesting that such officer was, at the time of the taking of the depositions, authorized, within the meaning of such sections, to take them. If the deposition is taken within this state by an officer not having a seal, or within or without this state under a special commission, it is sufficiently authenticated by the official signature of the officer or commissioner before whom it is taken. When a deposition is notcertified according to law, the fact neglected to be certifiedmay be shown by parol proof." (Emphasis added.)
Section 2319.24 relates to the certificate of the officer taking the deposition and is as follows:
"The officer before whom a deposition is taken shall annex thereto a certificate showing the following facts:
"(A) That the witness was first sworn to testify the truth, the whole truth, and nothing but the truth;
"(B) That the deposition was reduced to writing by some proper person, naming him;
"(C) That the deposition was written and subscribed in the presence of the officers certifying thereto;
"(D) That the deposition was taken at the time and place specified in the notice." *Page 390
While it appears that there are probably many defects in the procedure followed in attempting to perfect the lien, the issue raised in the trial court had to do with the procedure to be followed in the admission of the "sworn and itemized statement," and we feel that, in addition to the offered exhibits, the appellants should have been afforded the opportunity of presenting oral testimony to show that the statements were "sworn statements" and that the judgment of the trial court should be reversed and the cause remanded for further proceedings according to law.
GRIFFITH, J., of the Seventh Appellate District, sitting by designation in the Tenth Appellate District.