Harriss v. Parks

• Citation: 187 P. 470,77 Okla. 197,1920 OK 65
• Decision Date: 10 February 1920
• Docket Number: 9503.
• Parties: HARRISS v. PARKS.
• Court: Supreme Court of Oklahoma

187 P. 470

77 Okla. 197, 1920 OK 65

HARRISS v. PARKS.

No. 9503.

Supreme Court of Oklahoma

February 10, 1920

Syllabus by the Court.

A lien can only be created with the owner's consent, that is, by a contract express or implied with the owner of the property or with some one by him duly authorized, or without his consent by the operation of some positive rule of law, as by statute.

Statutory liens, however, have been looked upon with jealousy, and generally will only be extended to cases expressly provided for by the statute, and then only where there has been a strict compliance with all the statutory requisites essential to their creation and existence.

It is essential to the creation of a judgment that there shall be a judgment which is final and not merely interlocutory, capable of collection by execution against the debtor's property rendered by a lawfully and validly constituted court, and being a valid and subsisting judgment, for the payment of a definite and certain sum of money.

[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Judgment.]

The order of the judge of the county court allowing the claim of a guardian for compensation does not create a lien against real estate of his ward which follows it into the hands of subsequent purchasers after the ward attains his majority.

Error from District Court, Pontotoc County; Geo. C. Crump, Judge.

Action by F. C. Parks against F. R. Harriss and another. Default by the named defendant and judgment rendered against him in a decree declaring it to be a lien upon land described in the petition, and defendant Harriss brings error. Reversed in so far as attempting to create a lien against defendant's realty.

Robt. Wimbish and W. C. Duncan, both of Ada, for plaintiff in error.

C. E B. Cutler, of Ada, for defendant in error.

KANE J.

This was an action for the recovery of money and to enforce a lien against real estate, commenced by the defendant in error plaintiff below, against Sim Killcrease and the plaintiff in error, F. R. Harriss, defendants below. Sim Killcrease made default and took no part in the trial of the cause, the issues being joined between the plaintiff and the defendant Harriss.

Upon trial to the court personal judgment was rendered against Sim Killcrease and a decree entered declaring the same to be a lien upon the land described in plaintiff's petition. It is to reverse the latter part of this judgment and decree that this proceeding in error was commenced.

It seems that the plaintiff was formerly the duly appointed guardian of the person and estate of Sim Killcrease, a minor who was at that time the owner of the land in controversy; that, upon Sim Killcrease reaching his majority, the plaintiff filed in the county court his final report, wherein he claimed a sum certain as compensation for his services as such guardian; that said account for services was duly presented to the judge of the county court for allowance or rejection, and thereafter the same was duly allowed in the sum of $177.72. Thereafter, and without paying his claim for compensation, the final report of the guardian was approved by the county court, the guardian was discharged, and the estate including the land involved herein was turned over to Sim Killcrease. Thereafter, by a chain of conveyances commencing with Sim Killcrease and ending with the defendant, the land involved became the property of the defendant.

The only question presented for review is whether the order allowing the guardian's claim for compensation by the judge of the county court, wherein it was found that the ward was indebted to the guardian in the sum of $177.72, created a lien against the land of Sim Killcrease, which followed it into the hands of the defendant. In our judgment this question must be answered in the negative.

Generally a lien can only be created with the owner's consent, that is, by a contract express or implied with the owner of the property or with some one by him duly authorized, or without his consent by the operation of some positive rule of law, as by statute. 25 Cyc....