Allied Paint Mfg. Co. v. Banes

• Decision Date: 17 February 1953
• Docket Number: No. 35523,35523
• Citation: 208 Okla. 119,253 P.2d 826
• Parties: ALLIED PAINT MFG. CO. v. BANES et al.
• Court: Oklahoma Supreme Court

Page 826

253 P.2d 826

208 Okla. 119

ALLIED PAINT MFG. CO. v. BANES et al.

No. 35523.

Supreme Court of Oklahoma.

Feb. 17, 1953.

Syllabus by the Court.

1. An action may be dismissed without prejudice to a future action by the plaintiff before final submission to the jury or to the court, where the trial is by the court.

2. It is error for the trial court to overrule a motion of the plaintiff to dismiss the case and render judgment on the pleadings quieting title in the defendants in the absence of a cross-petition or counterclaim being plead in the answer of the defendants.

3. A counterclaim or cross-petition must be pleaded as fully and distinctly, and with the same substantial requisites, as an original cause of action; it must be sufficient within itself without recourse to other parts of the pleadings, or other pleadings, unless by express reference. It should be separately stated, and must show with certainty the character of the claim, how it accrued, and the facts making it a proper subject of counterclaim or cross-petition.

E. D. Brewer and George E. Brewer, Tulsa, for plaintiff in error.

Gable, Gotwals & Hays, Edwin S. Hurst and Joseph A. Moran, Tulsa, for defendants in error.

CORN, Justice.

This is a consolidated action, consisting of our cases, by plaintiff, Allied Paint Manufacturing Company, each of such cases being based on a materialman's lien filed by the plaintiff against four separate parcels of real estate, owned, one each by four separate man-and-wife joint tenancy defendants.

Each of these four properties consisted of residences which had been constructed by Alred Construction Company and H. M. Alred, the then owners, and, after construction, one of them had been sold to each of the four defendant joint tenancy owners.

The plaintiff furnished the point and wallpaper to Alred, for the construction of these improvements, and, on March 26th, 1951 filed materialman's liens for the said paint and wallpaper bill on the four properties.

On April 7th, 1951, the plaintiff released all four of the properties from the liens.

Later, on August 20th, 1951, plaintiff filed the four separate actions herein consolidated, alleging that its lien releases filed on April 7th, 1951, had been procured without consideration. Plaintiff prayed that the lien releases be set aside, for lack of consideration, and that the lines be reinstated and that they be foreclosed.

In these four separate actions, plaintiff made Alred a party, and asked for personal judgment against him, as owner and builder, and made the four separate joint-owner groups parties, because, in the meantime, they had purchased the properties. Plaintiff made the Deming Investment Company a party, because, prior to plaintiff's releases of liens, Deming Investment Company had taken a mortgage on each of the four properties.

Deming Investment Company, by its attorneys, filed identical answers in each of the four cases, setting up its mortgages, not asking foreclosure, but alleging priority over plaintiff. The defendants, William A. Brown and Viola Brown, by their attorney filed a separate answer, and the defendants, James S. Banes and Marien Banes, Mayes Odell Brown and Orlene Brown, and Marcus A. Wells, Jr., and Celestine Wells by their attorney, filed identical answers and each asked in the prayer for title to be quieted.

The court, by agreement of the parties, consolidated all four of the cases.

Before the time of trial the plaintiff dismissed all four of its petitions in the four separate cases and released and quitclaimed all four of the properties involved in the four separate actions.

When the case came on for trial, plaintiff moved the court to dismiss the actions, as to all parties.

The defendants, Deming Investment Company and the four joint-owner groups, objected to dismissal as to their separate answers and demanded that they be permitted to go to trial, for affirmative relief, on the issues raised by their answers.

The court overruled the motion of the plaintiff to dismiss as to all parties and thereafter, the four joint-owner defendants and the Deming Investment Company, filed motions for judgment on the pleadings.

The consolidated cases came on for trial on February 18th, 1952, and the court sustained said motions over the objections of the plaintiff, then without the introduction of any evidence rendered judgments in favor of the four joint-owner defendants and the mortgage company, against the plaintiff, quieting title in them against the plaintiff, and adjudging that by plaintiff's dismissal and releases of lien, the plaintiff had confessed judgment and that the defendants were entitled to have their titles quieted against the plaintiff and to have attorney's fees against the plaintiff, under the mechanic's and materialman's lien statute, and rendered $75 attorney fee in each case.

The plaintiff contends there is no affirmative issue raised by the answers of any of the defendants amounting to a cross-petition upon which to base a judgment quieting title in them. In each of the cases the defendant rely upon the prayer of their answer as constituting a cross petition upon which they can be given affirmative relief, to wit:

'Wherefore, premises considered, defendant prays that the plaintiff take nothing by this action; that the court establish the mortgage of this defendant, set up and herein described to be a first, valid, and subsisting lien upon the real estate prior and superior to the lien and claim of theplaintiff; that it recover its costs herein expended and the sum of $150.00 as attorneys' fees incurred by defendant in the defense of this action; and that this defendant have such other, further, and equitable relief as it may be entitled to, premises considered.'

In the answer of William A. Brown:

'Wherefore, having fully answered, defendants ask that plaintiff take nothing by its petition and that the court quiet the title of the defendants herein as to the said plaintiff, or as to any one claiming under or through it, and that the defendants recover their costs herein expended.'

The prayer in the answer of the rest of the defendants is identical to the following, to wit:

'Wherefore, defendants James S. Banes and Marien Banes, pray that the plaintiff be denied relief in so far as it seeks to have the alleged lien reinstated and foreclosed as the interest of these defendants; that these defendants' title and interest in and to said above described property be quieted as against the claims of said plaintiff; and that said defendants be allowed their costs herein expended together with a reasonable attorney fee and such other relief as may be just and proper.'

The right of the...