No. 14337
IN THE SUPREME COUIiT O THE S A E OF MONTANA
F T T
1978
SAUNDERS C S - A LUMBEX & H A F D m
AH Y
W
COMPANY, a Corporation,
P l a i n t i f f ad Appellant,
SUSAN A. HERRICK ad JAY BROWN, d/b/a
C LV C N T U TO ,
AI A O SR CI N
Defendants ard Respondents.
Appeal f r m : D i s t r i c t Court of the Thirteenth Judicial District,
Ibnorable Ibbert H. Wilson, Jdge presiding.
Counsel of Record:
For Appellant:
Fred N. Dugan, Billings, bbntana
For Respondents:
Herdrickson, Bishop and Everson, Billings, bbntana
Submitted on briefs: October 2, 1978
Decidd: DEI. 6 - 1978
Filed:
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Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Plaintiff appeals from an order dated, April 24, 1978,
granting summary jud.gment in favor of defendant, and summary
judgment dated May 12, 1978, entered by the District Court
for the Thirteenth Judicial District, Yellowstone County.
The parties submitted this appeal on an agreed statement in
lieu of a record on appeal.
Respondent owns real property situated in Yellowstone
County, Montana. Respondent entered into a contract with
Caliva Construction Company for improvements to the real
property she owned. Materials and supplies used in the
improvement of respondent's property were furnished by
appellant to Caliva Construction Company on and between
October 4, 1976 and November 10, 1976. Those materials and
supplies were valued at $2,843.24. None of this amount has
been paid to appellant.
On December 21, 1976, appellant timely filed in the
Clerk and Recorder's office for Yel-lowstone County a material-
man's lien pursuant to section 45-502, R.C.M. 1947. That
lien contained the following verification:
"STATE OF MONTANA 1
) ss.
County of Yellowstone )
R. A. SAUNDERS, being first duly sworn, upon his oath
deposes and says:
That he is Secretary and Business Manager of claimant
in this lien; that he makes this affidavit for and
on behalf of claimant, being duly authorized thereunto;
that he has read the within and foregoing notice of
lien and the annexed statement marked 'Exhibit A';
and knows the contents thereof; that the matters and
things therein set forth are true (to the best) of
his own knowledge, (information and belief).
/s/ R. A. Saunders
(Acknowledgment "
)
Appellant admits that R. A. Saunders did not have personal
knowledge of the transactions resulting in the statement
attached as Exhibit A. The above instrument is asserted by
appellant as sufficient to meet the affidavit requirement of
section 45-502, R.C.M. 1947.
On July 12, 1978, complaint of appellant was filed for
foreclosure. Service of process was made only upon the
respondent. The contractor who was joined as a defendant in
the cause had previously left the State, was not served and
does not figure in this appeal other than in relation to
the fact there is no direct contractual relationship between
appellant and respondent and that the relationship of appellant
to respondent is only that implied from the construction
contract alleged in the complaint and answer. An agreed
statement of facts was made and filed.
The matter was submitted on the agreed statement of
facts to the District Court upon cross motions for summary
judgment. The District Court entered its order granting
summary judgment for respondent and entered summary judgment
declaring the lien to be invalid due to an insufficient
verification.
The only issue presented by this appeal is whether a
mechanic's lien verified by a corporate officer "(to the
best) of his own knowledge, (information and belief)" is
valid and enforceable. After consideration of the record
and law pertinent to this issue, we determine that the
verification here was insufficient and we thus affirm the
judgment of the District Court as to the invalidity of the
lien.
It is well settled in Montana law that the special right
acquired by virtue of a mechanic's lien is purely statutory,
and the manner of securing it, by perfecting the lien, consists
of various steps and must be strictly followed. McGlauflin v.
Wormser (19031, 28 Mont. 177, 72 P. 428; Crane & Ordway Co.
v. Baatz (1917), 53 Mont. 438, 164 P. 533, 534; American&
Homes, Inc., v. Broadmoor Corporation, et al. (1969), 153
Mont. 184, 455 P.2d 334, 336. The statute which sets forth
the necessary requirements for perfection of the lien is
section 45-502, R.C.M. 1947, and states in pertinent part
"[elvery person wishing to avail himself of the benefits of
this chapter must file with the county clerk . . . a just
and true account of the amount due him . . . containing a
correct description of the property to be charged with such
lien, verified by affidavit . . ." This Court has interpreted
that language to require for perfection of the lien an
account, a description and an affidavit. Western Plumbing
Co. v. Fried (1905), 33 Mont. 7, 81 P. 394; Wertz v. Lamb
(1911), 43 Mont. 477, 117 P. 89, 92.
The purpose of the affidavit is not only to entitle the
lien to record, "but to furnish a sanction for it in such an
oath as will subject the affiant to punishment for perjury
if it be false in material particulars." Crane & Ordway Co.
v. Baatz, 164 P. at 535. Such a requirement is necessary
because of the extraordinary right imposed by the mechanic's
lien. Once the lien is perfected, it has priority over any
prior lien, encumbrance or mortgage upon the land. Section
45-506, R.C.M. 1947. This extraordinary claim should not be
placed on the property of another unless the facts out of
which the lien arises are vouched for on oath by some person
who knows them to exist. Globe Iron Roofing & Corrugating
Co. v. Thatcher (1889), 87 Ala. 458, 6 So. 366, 367. The
sanction of perjury insures the veracity of the statements
made by the person with knowledge. Thus, a test of the
sufficiency of the affidavit to a mechanic's lien is whether
perjury is assignable upon the verification to it. Gregg v.
Sigurdson (1923), 67 Mont. 272, 215 P. 662, 663.
Perjury is defined in our criminal code as knowingly
making in an official proceeding a false statement while
under oath. Section 94-7-202(1), R.C.M. 1947. Considering
the verification before us and the record on appeal, we cannot
conclude perjury is assignable upon this verification.
The affidavit does not indicate of what R. A. Saunders
has personal knowledge. Giving the verification the most
favorable construction, it only affirms that R. A. Saunders
knows the contents of the attached exhibit and that those
contents are "true (to the best) of his own knowledge,
(information and belief);" that is to say, he swears that
statement shows that charges were incurred by Caliva Construction
Company. He does - swear to the validity of those charges.
not
This Court has stated "that an affidavit so worded is in no
sense equivalent to a declaration under oath that the matter
contained therein is true." Rogers-Templeton Lumber Co. v.
Welch (1919), 56 Mont. 321, 184 P. 838, 840. If the items
contained in the statement were in fact false, R. A. Saunders
could not be charged with perjury based on the verification
as it is worded. The record reveals R. A. Saunders did -
not
have personal knowledge of the transactions resulting in the
items contained in that statement, and therefore could not
absolutely swear to the validity of the statement. Thus,
perjury is not assignable upon this verification and in that
respect it is insufficient.
The verification is insufficient in another respect.
When a lienor asks the Court to enforce a mechanic's lien
and foreclose, the lienor is asking the Court to impose an
extraordinary right upon the property involved. The lienor
asks the Court to take such action based upon the complaint
and accompanying affidavit as proof of the existence of
the lien. Thus the complaint and affidavit in this situation
"must be considered from the standpoint of evidence and
tested by the rules of evidence, rather than those of
pleading and practice." Benepe-Owenhouse Co. v. Scheidegger
(1905), 32 Mont. 424, 80 P. 1024, 1026. See, Fisk ire Co.
v. Lanstrum (1934), 96 Mont. 279, 30 P.2d 84, 85.
This consideration is particularly relevant in the
present situation where the parties submitted stipulated
facts to the District Court, including the notice of the
lien and supporting affidavit, and upon this proof asked for
a decision. If the allegations contained in the notice and
affidavit are made positively and sworn to as of the affiant's
own knowledge, there is no apparent reason why they may not
convince a court of their truth. Benepe-Owenhouse Co. v.
Scheidegger, supra. "If the allegations, however positively
made, are sworn to only upon information furnished to the
affiant by some third person, then they are merely hearsay,
and ought not to have been given any evidentiary value, for
the evidence necessary to move the [court] must be legal
evidence." Benepe-Owenhouse Co. v. Scheidegger, supra.
As in Benepe, it cannot be ascertained from the affidavit
before us now what portion of the facts alleged are declared
upon R. A. Saunders' own knowledge, what portion upon informa-
tion which may have been furnished to him from whatever
source obtainable, or what portion upon his mere belief,
which may be a deduction from facts and circumstances as
they appeared to him. An affidavit verified in such a
fashion is insufficient and will not support a claim for a
mechanic's lien. Western Plumbing Co. v. Fried, supra.
Therefore, because an affidavit is an essential part of
a mechanic's lien, Western Plumbing Co. v. Fried, supra, and
because the document in this case is insufficient as an
affidavit no lien existed and the District Court is affirmed.:
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Justice J
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We Concur:
Chief Justice