I concur in the majority *Page 160 opinion. It may, however, be helpful to point out some distinctions to be drawn between the cases from foreign jurisdictions, cited in the dissenting opinion, and the instant case.
Was Dalbey's statement or claim "verified" as required by our statute? What he signed was not merely the "statement" which the statute requires to be verified. Attached to the statement was awritten oath: "State of Iowa, Polk County, ss: I, Robert T. Dalbey, on oath depose and say * * *." This he signed and the notary certifies that he "acknowledged that he executed the same as his voluntary act and deed." Surely this constitutes proof that he took an oath.
The dissenting opinion cites cases from Indiana, New York (Supreme Court, Appellate Division), and Kentucky. On examination none of them seems to be authority against the majority opinion here.
In Gossard v. Vawter, 215 Ind. 581, 584, 21 N.E.2d 416, 417, the Indiana case cited, the signature of the would-be affiant was attached to an oath, but there was no jurat or certificate signed by the notary. No contention was made that it was sufficient without. The prayer was that the notary be permitted to complete the verification by signing the jurat. Even in that case the court recognizes that:
"The courts of this country are not entirely agreed as to the effect of the omission of a jurat upon an affidavit, but according to the majority view such omission is not fatal to the validity of the affidavit, so long as it appears, either from theinstrument itself or from evidence aliunde, that the affidavit was, in fact, duly sworn to before an authorized officer." (Italics supplied.)
The statements of fact in the New York cases cited in the dissenting opinion do not indicate any such record as we have here. In neither does it appear that an oath was signed. In each the claimant apparently signed and acknowledged the notice only. Schenectady Contracting Co. v. Schenectady Ry. Co., 106 A.D. 336, 94 N.Y. Supp. 401, and In re James Passero Sons, 237 A.D. 638, 261 N.Y. Supp. 661.
The same distinction is to be pointed out as to the Kentucky case, Indiana Quarries Co. v. Simms, 158 Ky. 415, 165 S.W. 422. *Page 161 There is no indication in it that the claimant subscribed on oath. He merely signed and acknowledged the "statement." That is not the case here.
The dissenting opinion, following the language of the Indiana court, refers to this oath as a "self-serving recital." This is entirely inaccurate. It is rather in the nature of an "admission" — an admission that the subscriber has bound himself by an oath. The statute requires him to so bind himself. That is the price the law exacts from him for the privilege of availing himself of a mechanic's lien. After he signed the oath and acknowledged before the officer that he signed it, and after the fact is certified by such officer and the claim thus verified is filed, surely the claimant could not be heard to repudiate the act with all its implications; he was bound by the oath he had signed. No words that could have been added by the notary would have made it more binding. The certificate, though not in form a jurat, effectively served the purpose of one. It was a certificate by an officer qualified to administer oaths and it evidenced the fact that the affiant admitted the signing of the oath.
MILLER, J., joins in this special concurrence.