Bank of Earlsboro v. J. E. Crosbie, Inc.

• Decision Date: 25 January 1938
• Docket Number: Case Number: 27196
• Citation: 1938 OK 48,182 Okla. 327,77 P.2d 547
• Parties: BANK OF EARLSBORO v. J. E. CROSBIE, Inc., et al.
• Court: Oklahoma Supreme Court

1938 OK 48

77 P.2d 547

182 Okla. 327

BANK OF EARLSBORO v. J. E. CROSBIE, Inc., et al.

Case Number: 27196

Supreme Court of Oklahoma

Decided: January 25, 1938

Syllabus

¶0 1. INTERPLEADER - PLEADING - Objection to Sufficiency of Allegations of Bill in Nature of Bill of Interpleader Waived Where no Timely Objection.

Objection to the sufficiency of the allegations of a bill in the nature of a bill of interpleader is waived where not challenged by demurrer or by objection to the introduction of testimony on behalf of plaintiff.

2. SAME - JUDGMENT - Bill Sufficient if It Alleges Enough to Challenge Judicial Inquiry, Though not Stating Facts Sufficient to Constitute Cause of Action.

In order to give court of equity jurisdiction in an action in the nature of a bill of interpleader, it is not necessary that plaintiff's bill state facts sufficient to constitute a cause of action; it is sufficient that it allege enough to challenge judicial inquiry.

3. SAME - Parties Entitled to Intervene.

In an action in the nature of a bill of interpleader, all parties claiming an interest in the fund may be permitted to intervene.

4. SAME - MECHANICS' LIENS - Rights as Between Assignee of Contractor and Lien Claimants - Lien Claimants Entitled to Attorneys' Fees.

In an action in the nature of a bill of interpleader, where there is a contest between lien claimants and assignee of contractor in respect of fund arising from construction contract, the assignment by a contractor of the balance due under his contract with the owner will not defeat a laborer's or mechanic's and materialmen's lien duly perfected before payment is made to assignee. In such case the lien claimants who perfected liens under the mechanics' and materialmen's lien statutes are entitled to reasonable attorney fees out of said fund under section 11021, O. S. 1931.

5. SAME - Claim for Feed for Teams Furnished to Contractor Held not Lienable.

Claim for feed for teams furnished to a contractor held not lienable under sections 10975 and 10977 O. S. 1931.

Appeal from District Court, Pontotoc County; Tal Crawford, Judge.

Action by J.E. Crosbie, Inc., against the Bank of Earlsboro and others. From an adverse judgment, named defendant appeals. Affirmed in part; reversed in part.

A.B. Carpenter, for plaintiff in error.

L.H. Harrell and A.M. Kerr, for defendant in error J.E. Crosbie, Inc.

Claude V. Thompson, for defendant in error George R. Hook.

H.G. Orton, for defendant in error Lee Walker.

Jane A. Shaw, for defendant in error J.D. Lackey.

Mack M. Braly, for defendants in error Lloyd DeGraffenreid, Bill Coyner, and Olin Jones.

Wm. M. Dodson, for defendant in error C.J. Clark.

HURST, J.

¶1 Plaintiff, J.E. Crosbie, Inc., employed a contractor to build a gasoline plant on one of its oil and gas leases. The contractor assigned all of his interest in the money due under the contract to the defendant, Bank of Earlsboro, and left for parts unknown. The subcontractors and laborers, who did the work for the contractor, had not been paid, and were claiming, or about to claim, liens on plaintiff's lease. One laborer had filed a lien, but no one had filed suit. Alleging these facts in a. "Bill of Interpleader", plaintiff commenced this action. The contractor, the bank, and the lien claimant who had filed his lien were made party defendants. Plaintiff tendered into court the sum of $2,078.50, which it claimed was the amount due the contractor for the work done, and prayed that the defendants and all other persons be required to come into court and present their claims, and that the court determine who is entitled to the money and disburse it accordingly. Plaintiff then asked that its property "be discharged from any and all liens or claims of the defendants."

¶2 Six subcontractors and laborers, in addition to the one named as a defendant, filed pleadings designated "interplea". One of them also filed a lien within 60 days as required by the mechanic's lien law (sec. 10977, O. S. 1931), and he and the defendant claimants prayed that their liens be foreclosed and that the leasehold estate, gasoline plant and equipment be sold to satisfy their claims. Two other claimants filed interpleas within 60 days in which they also prayed for the foreclosure of liens, although they filed none. The remaining three claimants did not file or claim liens upon the property, but sought to have their claims satisfied out of the fund deposited into court by the plaintiff. The four claimants seeking the foreclosure of liens asked for attorney fees, but the remaining three did not. The bank sought to recover the entire fund by virtue of the assignment.

¶3 As the fund was more than sufficient to pay the aggregate amount of the claims of the materialmen and the labor claimants, including attorney fees, there was no question of priority among themselves and they did not object in any manner to the remedy sought by plaintiff.

¶4 The court rendered judgment granting plaintiff the relief sought for in interpleader and discharged plaintiff without further costs. The court found that the four who claimed liens upon the property were entitled to liens and attorney fees payable out of the fund. The court further found that the assignment to the bank was inferior to the payment of the amount due the remaining three claimants, and that they were entitled to payment out of the fund. It was then ordered that the balance of the fund be paid to the bank. The bank brings this appeal.

¶5 1. It is first contended that the bill filed by plaintiff is not sufficient to state a cause of action. The bank filed no demurrer and interposed no objection to the introduction of evidence on behalf of plaintiff, and thus the objection that the bill or petition does not state facts sufficient to constitute a cause of action is waived. Clark v. Farmers State Bank (1915) 48 Okla. 592, 149 P. 1189. But it is contended that the sufficiency of the bill was properly challenged by motion to dismiss, which was orally entered by counsel for the bank at the opening of the trial. This is true in so far as it goes to the question of jurisdiction for the objection to the jurisdiction of the court over the subject matter may be raised by motion to dismiss at any stage of the proceeding. Twine v. Carey (1894) 2 Okla. 249, 37 P. 1096. But it is not necessary to jurisdiction that plaintiff state a cause of action. Abraham v. Homer (1924) 102 Okla. 12, 226 P. 45. It is enough that the pleadings state facts sufficient to challenge judicial injury (Welch v. Fotch, 67 Okla. 275, 171 P. 730) when the court has the power to proceed in a type of case of the character presented, or power to grant the relief sought in a particular action. Howard v. Duncan (1933) 163 Okla. 142, 21 P.2d 489. Such being the case, it is immaterial whether plaintiff's bill was defective in the particulars complained of by the bank, for the reason that the pleadings are sufficient to invoke the jurisdiction of the court of equity. The action is proper as a bill in the nature of a bill of interpleader, and not strict interpleader, because plaintiff has asked for affirmative relief; that is, a discharge of its property from liens. Newhall v. Kastens (1873) 70 Ill. 156; Illingworth v. Rowe (1894 N.J. Eq.) 28 A. 456. The only material distinction between strict interpleader and a bill in the nature of a bill of interpleader is that in the former the plaintiff must be a mere stakeholder, whereas in the latter, he may himself seek affirmative relief. Guaranteed State Bank v. D'Yarmett (1917) 67 Okla. 164, 169 P. 639; 33 C. J. 419, et seq.; 15 R. C. L. 222.

¶6 2. It is next assigned as error that the plaintiff introduced no evidence to support the allegations of its bill. The introduction of evidence, however, was rendered unnecessary by the formal admission in the "response" or answer of the bank, wherein it was alleged:

"The Bank of Earlsboro, one of the defendants named herein, further alleges and states that it has no issue and takes no issue with the bill of interpleader of the plaintiff, J.E. Crosbie, Incorporated, other than that no other party than this answering defendant, the Bank of Earlsboro, has any just claim, right or title to any of the funds tendered and offered to be impounded herein."

¶7 We think it readily apparent that the bank has expressed an intention to eliminate the issue of the sufficiency of the allegations of the bill and has limited the controversy to a contest against the claimant. Therefore we find no reversible error in the judgment so far as plaintiff is concerned.

¶8 3. As between the bank and the other defendants, it is first contended that the court erred in permitting certain parties to intervene who were not named by plaintiff in its bill. But in an action in the nature of interpleader, all parties claiming an interest in the fund may be permitted to intervene. 33 C. J. 449. All the claimants seek an interest in the fund. Even those who prayed for foreclosure of their liens against plaintiff's property have, by coming into this action without objection to plaintiff's bill, made a claim against the fund in lieu of their claim against the property. The court committed no error in overruling the objection of the bank to their entry.

¶9 4. It is further contended that the court erred in granting the subcontractors and laborers priority over the bank on their claims for labor, materials, and attorney fees. In order to properly determine the rights between the bank and the various claimants, they must be grouped into three categories: First, those who neither filed liens nor claimed liens in their interpleas; second, those who did not file liens, but claimed liens in their interpleas, filed within 60 days from the completion of their contracts with the original contractor: and third, those who filed liens within the time and in the manner as required by law.

¶10 The first group consists of C.J. Clark and Olin Jones. The claim of Clark was hi the sum of $25 for ...