Dissenting. — This is a suit to foreclose a lien which plaintiffs claimed to have on an automobile owned by defendant, for the reasonable worth of labor, skill and materials expended *37by plaintiffs upon said automobile at the request of defendant.
It appears from plaintiffs’ complaint that the proceedings for foreclosure were initiated in the manner provided by Or. L., Section 10277, for foreclosure of a lien by advertising and sale of the chattel subject to the lien; that plaintiffs between the fifth and fifteenth days of July, 1919, at the request of defendant, expended labor, skill and materials upon defendant’s automobile, of a reasonable value of $194.96; that defendant failed and refused to pay plaintiffs said sum or any part thereof, and upon the twenty-third day of July, 1919, plaintiffs prepared and caused to be filed in the office of the County Clerk of Baker County, Oregon, in which plaintiffs expended the labor, skill and materials upon defendant’s automobile a lien notice designed and intended by plaintiffs to make effectual the lien to which they were entitled under Or. L., Section 10272; that the sheriff, pursuant to the written directions of the plaintiffs indorsed upon the copy of the notice of lien certified to by the County Clerk of Baker County, did on July 25, 1919, serve upon the defendant a certified copy of the notice of lien, together with an itemized bill of particulars of the demand of plaintiffs, and took into his possession the automobile upon which the lien was claimed; that within ten days thereafter, the defendant delivered to the sheriff a written and verified denial of the allegations and statements contained in the lien notice and bill of particulars and also an undertaking in the penal sum of $389.92, double the amount of the lien claimed by plaintiffs for the redelivery of the automobile to defendant, and that thereupon the automobile was redelivered by the *38sheriff to defendant; that the sheriff made dne return to the Circuit Court of all the foregoing proceedings, and that ten days had not elapsed at the time of the filing of the formal complaint herein. The complaint prayed for a foreclosure of the lien and sale of the automobile as provided by the statute, or in the alternative, that the defendant pay to plaintiffs the sum which plaintiffs should feeover, as provided by the statute and by the undertaking given by defendant.
Upon a trial had in the Circuit Court, a decree was entered in favor of plaintiffs in accordance with the prayer of their complaint. Defendant appeals from that decree.
At the trial defendant conceded, and by his answer he admitted, that plaintiffs expended the labor, skill and materials upon defendant’s automobile which they alleged in their complaint, and that the same were of the reasonable worth of $194.96, but defendant alleged in his answer, and contended upon the trial, that all but $50.62 of plaintiffs’ claim embraced charges for materials furnished by plaintiffs for the purpose of replacing a portion of the parts of, and accessories to, the automobile, which were lost or stolen therefro,m by reason of the negligence of plaintiffs in leaving the automobile upon a public road unprotected. The • trial court found against the foregoing contention of defendant.
Defendant in this court for the first time challenges the sufficiency of the complaint upon the single ground that it does not appear from the complaint that plaintiffs’ lien notice contained a statement of the amount plaintiffs demanded for the labor, skill and materials expended by them upon the automobile of the defendant.
*39In order for plaintiffs to make effectual the lien claimed by them and to wbicb they were entitled under the provisions of Or. L., Section 10272, they were required within sixty days from the date of delivery of the automobile to defendant, to file in the office, of the County Clerk of the county in which the labor, skill and materials were expended on the automobile, a lien notice, in which they were required upon oath to state among other essentials, “the amount for which the lien is claimed”: Or. L., § 10273.
The notice of lien must contain substantially every statement required by the statute, in order to make the lien effectual: Allen v. Rowe, 19 Or. 190 (23 Pac. 901); Pilz v. Killingsworth, 20 Or. 435 (26 Pac. 305); Rankin v. Malarkey, 23 Or. 597 (32 Pac. 620, 34 Pac. 816); Gordon v. Deal, 23 Or. 155 (31 Pac. 287); Nicolai v. Van Fridagh, 23 Or. 149, 150 (31 Pac. 288); Osborn v. Logus, 28 Or. 302, 319 (37 Pac. 456, 38 Pac. 190, 42 Pac. 997). And the complaint for the foreclosure of such a lien, in describing the notice of lien, must affirmatively allege that the notice filed contained all the essential statements required by the statute: Pilz v. Killingsworth, 20 Or. 432, 437 (26 Pac. 305); Matthieson v. Arata, 32 Or. 342, 345 (50 Pac. 1015, 67 Am. St. Rep. 535); Coffey v. Smith, 52 Or. 538, 540 (97 Pac. 1079); Equitable Savings & Loan Assn. v. Hewitt, 55 Or. 329, 335 (106 Pac. 447); Craig v. Crystal Realty Co., 89 Or. 25, 32, 33 (173 Pac. 322).
In view of the foregoing authorities, the claim of plaintiffs was not effectual as a lien, unless they filed a lien notice within sixty days after the labor, skill and materials were expended upon the automobile, which together with other essential statements *40required by tbe statute, contained a statement of the amount for which the lien was claimed.
Plaintiffs did not allege in their complaint that the lien notice filed by them contained the latter statement. The complaint set forth the date and place of filing the lien notice, and with the exception of the blank space which we insert to indicate the position both in the statute and the lien notice of the omitted clause, described the lien notice as follows:
“ # * Which said notice did state the names of plaintiffs as lien claimants, the name of the owner or reputed owner of said automobile, a description of the same sufficient for identification, --, and the date upon which such expenditure was completed, which said notice was duly verified by oath of these plaintiffs and by which the lien of these plaintiffs for said labor, skill and materials became effectual.”
Defendant expressly admitted the portion of the complaint above set out. The only direct statement in plaintiffs’ pleadings of the amount claimed by them in their lien notice is found in the reply where it is alleged:
“That thereupon the said defendant acting through his said agent Arthur Hicks, did prepare and deliver to plaintiff a cheek on the First National Bank of G-rant County, Oregon, in an amount of $194.96, being the total amount of plaintiff’s charges for said services as disclosed by plaintiffs’ notice of lien
Plaintiffs did not upon the trial offer in evidence the lien notice filed by them, but the same was made a part of the record of the cause by the sheriff’s return, hereinafter mentioned, and was treated by the parties and the court as though formally introduced in evidence.
*41The complaint was insufficient as against timely attack made by demurrer or by appropriate motion during the trial and while opportunity might have been given plaintiffs to amend. Until judgment or decree, a pleading is construed most strongly against the pleader as to defects in respect to which objections are available to the adverse party, but after judgment or decree every intendment is indulged in favor of the pleading upon which such judgment or decree is based.
It was alleged in the complaint and admitted by the answer, that preliminary to filing their formal complaint, plaintiffs caused the automobile upon which they claimed a lien, to be attached and taken into possessioin by the sheriff; that incident thereto the sheriff was furnished a copy of the lien notice filed by plaintiffs, certified to be such copy by the County Clerk; that the sheriff served a true copy of that notice on defendant, who delivered to the sheriff a verified denial of all the matter contained in plaintiffs ’ notice of lien, together with an undertaking as authorized by the statute in the sum of $389.92; that the sheriff made his return showing service by him of said copy of notice of lien, taking into possession the automobile, service upon him, the said sheriff, of the verified denial of the matters contained in the lien notice, defendant’s undertaking for redelivery of the automobile, and redelivery of the same to defendant.
In the absence of the undertaking authorized by the statute, the sheriff was required to “retain the possession of said personal property, subject only to the order or orders of the Circuit Court having jurisdiction of the parties, or the subject matter, in a suit to be prosecuted by such lien claimant, which suit shall *42be begun, and prosecuted within an additional period of ten days from the time of service upon such officer of such denial or allegation of payment.”
When the undertaking is given, the statute requires “a good and sufficient undertaking executed by one or more sufficient sureties in the sum of not less than $100, and equal to double the amount of the lien claimed, undertaking to redeliver such chattel in like order and condition as it was when seized, to the sheriff * * upon demand of such officer having an execution issued upon any judgment, or in lieu thereof to pay to the lien claimant any judgment which such lien claimant * * may recover against the defendant * * in any foreclosure suit # * ? j
The statute further provides that when the undertaking mentioned has been given, “the Circuit Court * * shall at the time of rendering judgment and decree of foreclosure, make and enter an alternative decree directing the principal and surety to forthwith surrender said chattel to the sheriff * * , or in lieu thereof, to pay to the lien claimant the amount of said judgment.” Or. L., §10277.
The statute contemplates that the sheriff shall report to the court the action taken by him and the court is required to consider that action and formulate its decree in response thereto, as it did in this suit. The sheriff’s return and accompanying papers are a part of the record of the foreclosure proceeding in which they are filed.
Elsewhere in the Code we find the following provision :
“An officer to whom any process, order, or paper ’ is delivered shall execute or serve it according to its command or direction, or as required by this *43Code or other statute, and must make a written return of the execution or service thereof.’,’ Or. L., § 1039.
A sufficient return by the sheriff in this instance and one upon which the court could intelligently act in determining what judgment or decree to enter therein and in framing that judgment or decree, required that the certificate of the sheriff should be accompanied by the certified copy of the notice of lien delivered to him by the plaintiffs, a copy of which was served upon defendant, the verified denials of the matter in the notice which were delivered to the sheriff by the defendant, together with the’ original undertaking given by defendant. Such a return was filed by the sheriff.
An examination of the return discloses that the lien notice filed by the plaintiffs contained the statement, “that the amount claimants demand for labor, skill and materials so expended is one hundred ninety-four and 96/100 (194.96) Dollars”; and that the verified denial delivered by defendant to the sheriff specifically denies that statement in the following words: “denies the amount claimants demand for labor, skill, or materials expended on said automobile is the sum of $194.96 or any other sum or amount.” In his verified denials defendant also specifically denied every other statement in plaintiffs’ lien notice. The undertaking which defendant executed and which was returned by the sheriff is in the sum of $389.92, exactly double the sum claimed in the lien notice; Wm. H. Schroeder is the surety thereon.
The undertaking was executed by defendant before the formal complaint was filed or served upon him; *44the penal sum thereof was double the amount claimed in plaintiffs’ lien notice, as required and provided by the statute, which amount could not have been ascertained by defendant except from the copy of that notice served upon him by the sheriff. In this aspect of the case plaintiffs allege in their complaint and defendant in his answer admitted that defendant gave an undertaking in the sum of $389.92, double the amount for which plaintiffs in their lien notice claimed a lien.
The complaint discloses but one defect, the omission of a clause in the description of the lien notice; the description is complete and sufficient in all other respects. The lien notice contains the clause omitted from the description and it is manifest that its absence from the complaint is due to inadvertence or oversight likely to occur in such cases. The defect would have been corrected upon the slightest suggestion made before or at the trial. The lien notice was a public record, advising defendant even before the complaint was filed that it embodied all the essential statements required by the statute. Defendant could gain no possible advantage from the defect in the complaint, unless plaintiffs remained in ignorance thereof until after decree.
A decree is fortified against objections to a defect in a pleading reserved until the cause is upon appeal by every legitimate inference favorable to the decree and the pleading attacked, that may be drawn from the record. In some cases a defective statement in a complaint, to which no objection had been made until after verdict, has been aided by allegations in the reply: Denver & R. G. R. Co. v. Cahill, 8 Colo. App. 158 (45 Pac. 285, 287); Johnson v. Cummings, 12 Colo. App. 17 (55 Pac. 269, 271).
*45The material allegation here was the description of the lien notice. It was defectively stated, not omitted. The evidence of the fact, to wit: the lien notice, would be the same whether the allegation was complete or defective, in which case the want of statement is cured by decree: Winters v. Frivett, 86 Or. 501, 506 (168 Pac. 942); Lindstrom v. National Life Ins. Co., 84 Or. 588, 596 (165 Pac. 675). In the case last cited many Oregon cases upon the point are collected.
The complaint alleged, and the answer expressly admitted, that by describing the lien notice filed in the complaint, “the lien of these plaintiffs for said labor, skill and material became effectual.” The sentence quoted, though a conclusion of law, was used by plaintiffs in attempting to state a material fact, and aids the complaint as against objection made for the first time upon appeal, the record disclosing that the deduction made by the pleader was true: Creecy v. Joy, 40 Or. 28, 33 (66 Pac. 295).
In view of the foregoing consideration, the defect in the pleadings, of which defendant tardily objects, does not defeat the decree.
Defendant makes the further contention that plaintiffs’ possession of the automobile was not sufficient to support a lien. It is settled by the decision of this court that possession such as the plaintiffs had in this case is. sufficient to support the lien created by the statute: Courts v. Clark, 84 Or. 179, 183 (164 Pac. 714); Miner v. Pitts, 89 Or. 602, 605 (175 Pac. 133). See Sumner K. Prescott Co. v. Sumner, 117 Wash. - (201 Pac. 308, 311).
The decree of the Circuit Court should be affirmed.
McBride and Bean, JJ., concur in this dissent.