Harris v. Spurrier Lbr. Co., Case Number: 17171

• Court: Supreme Court of Oklahoma
• Writing for the Court: BENNETT, C.
• Citation: 1928 OK 192,265 P. 637,130 Okla. 99
• Docket Number: Case Number: 17171
• Decision Date: 20 March 1928
• Parties: HARRIS et al. v. SPURRIER LBR. CO.

1928 OK 192
265 P. 637
130 Okla. 99

HARRIS et al.
v.
SPURRIER LBR. CO.

Case Number: 17171

Supreme Court of Oklahoma

Decided: March 20, 1928

Syllabus

¶0 1. Judgment--Validity of Judgment Enforcing Materialman's Lien--Not Void on Face Because Original Summons Against Subcontractors Absent from Judgment Roll--Motion to Vacate Held Without Merit.

In action by materialman to enforce his lien, the subcontractors are necessary parties defendant, but if proper summons is issued for such subcontractor and the owners of the real estate affected file an answer by general denial and plea of payment, and where the decree states that the owners appeared in person and by attorney at trial, waived a jury, announced ready and proceeded to trial without objection, and a judgment is rendered fixing amount due, declaring the lien and a continuance of the cause as to subcontractor, held, that the absence from the judgment roll of the original summons against subcontractors does not render the judgment void on its face; and held, further, that a motion to vacate same made after the term by the owners of the real estate affected and without supporting evidence and based solely on the ground that the judgment is void on the face of the judgment is, without merit.

2. Mechanics' Liens--Parties Defendant--Enforcement Where Contractor Cannot Be Served with Summons.

Syllabus in New Lumber Co. v. Ryal, 56 Okla. 746, 156 P. 637, is adopted as second paragraph of this syllabus.

3. Judgment--Collateral Attack--Presumptions Favoring Validity--Process.

Paragraph 3 of syllabus in Pettis v. Johnston, 78 Okla. 277, 190 P. 681, is adopted as paragraph 3 of this syllabus.

Commissioners' Opinion, Division No. 2.
Error from District Court, Creek County; C. H. Baskin, Assigned Judge.
Motion by F. O. Harris and Zoe Harris, to vacate judgment in favor of the Spurrier Lumber Company as being void on face of judgment roll. Motion denied by trial court, and appeal by movants. Affirmed.

Hughes, Foster & Ellinghausen, for plaintiffs in error

George H. Jennings, for defendant in error.

BENNETT, C.

¶1 An appeal from the district court of Creek county from an order of the court overruling motion to vacate a judgment in favor of Spurrier Lumber Company against F. O. Harris and Zoe Harris. The latter parties will be herein designated as plaintiffs and the lumber company as defendant. The appeal is in form by case-made but in effect by transcript, as no evidence or proceedings are included in the record. The only error claimed is the refusal of the court to vacate a judgment which plaintiffs say was void upon the face of the judgment roll.

¶2 The original judgment was taken in a case pending in district court of Creek county in July, 1924, wherein the lumber company was plaintiff and F. O. and Zoe Harris, the Georgia State Savings & Loan Association, J.

¶3 L. Miller, C. A. Ruggles, C. E. Dickinson, and B. D. Vice, were defendants. The action by the lumber company was to foreclose a materialman's lien against the real property of F. O. Harris and Zoe Harris. The individual defendants were alleged to be contractors who had some part in the erection of the building against which the lien was sought, and the loan association was alleged to have some interest in the premises, junior, however, to the claims of plaintiffs.

¶4 Upon filing the petition in the cause last named, the plaintiff caused summons to be issued against F. O. and Zoe Harris, J. L. Miller, C. A. Ruggles, C. E. Dickinson, and B. D. Vice, and also separate summons against the loan association, but the appellants herein claim (and the record sustains them) that the summons directed against J. L. Miller, C. A. Ruggles, C. E. Dickinson, and B. D. Vice, does not appear among the papers of the judgment roll. The other defendants are shown by the record to have been served.

¶5 F. O. Harris and Zoe Harris filed a demurrer to plaintiff's petition, but it was not passed upon, and later filed a motion to require plaintiff to furnish defendants a statement of account, and asked for additional time to answer. Within the time allowed they filed an answer containing a general denial, but admit that they were the owners of the lots in controversy, and later still filed an amendment to their answer setting out "that the account sued upon in this action has been paid in full by the defendants herein and that they are not now indebted to plaintiffs in any sum whatsoever."

¶6 On June 22, 1925, said cause was tried; plaintiff appearing by its attorneys, defendants F. O. and Zoe Harris appearing in person, and by their attorneys, and the Georgia State Savings & Loan Association appearing by its attorneys. A jury was waived and all parties announced ready for trial. After the case was closed the same was continued to a later date for argument, when a judgment was entered in which it was found that F. O. and Zoe Harris entered into a contract with J. L. Miller, by which the latter was to furnish labor and materials for the erection of a house on lot 2, block 67, original town of Bristow, and that thereafter said Miller contracted with Ruggles, Dickinson, and Vice to furnish material which went into the structure, and it is decreed that there is due from Miller, Dickinson, Ruggles and Vice to the lumber company $ 517.10 for material, and a lien therefor is declared against the real estate, and the same is ordered foreclosed subject only to a prior lien given the loan association, and the cause was continued as to defendants Miller, Ruggles, Dickinson and Vice, as shown by the judgment.

¶7 No motion for new trial was filed, and after the expiration of the term of court, and on the 8th of June, 1925, F. O. and Zoe Harris filed their motion to vacate the judgment aforesaid upon the following grounds:

"(a) That * * * no service, or pretended service of summons, was had upon the said defendants (J. L. Miller, C. E. Dickinson, C. A. Ruggles and B. D. Vice), * * * and that said defendants did not appear at said trial either in person or by attorney, and that the said judgment shows upon its face that said cause was continued as to said defendants, * * *

"(b) That said judgment and pretended judgment is wholly void upon its face, for the reason that said judgment shows upon its face that the said court had no jurisdiction of the person of the said defendants J. L. Miller, C. D. Dickinson, C. A. Ruggles, and B. D. Vice, or either of them, and that the said judgment in the said sum of $ 517.10 is therefore wholly void and of no effect, and there is nothing on which to base a lien against and upon the premises of these defendants. * * *

"Second. * * * That the said defendants J. L. Miller, C. E. Dickinson, C. A. Ruggles, and B. D. Vice, were, according to the allegations of the plaintiff's petition, contractors, and that these moving defendants were the owners of the lands hereinbefore described, and that the cause of action as set forth in plaintiff's petition is for material above furnished for the erection of a building on the above described premises to said contractors, and that said contractors were, therefore, indispensable parties to said cause, and said cause could not proceed to trial without said contractors having been duly summoned to appear in this court to answer to said cause of action, and that, as more fully appears from the face of the plaintiff's petition, the said plaintiff has no cause of action whatever against these defendants independent of the cause of action alleged and proved against the said defendants J. L. Miller, C. E. Dickinson, C. A. Ruggles and B. D. Vice; ** * and that the pretended

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