Holland v. Robbins
| Decision Date | 25 September 1923 |
| Docket Number | 11640. |
| Citation | 219 P. 387,92 Okla. 225,1923 OK 688 |
| Parties | HOLLAND v. ROBBINS, SHERIFF, ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Under section 2, article 12, of the state Constitution the homestead of the family is protected from forced sale for the payment of debts, except for the purchase money therefor or a part of such money, for taxes due thereon, or for work and material used in constructing improvements thereon; but this provision does not thereby fix a lien upon the homestead for debts contracted under the exceptions, for work and material used in constructing improvements thereon, but a party desiring to assert such lien claim must first comply with requirements of the statutes by filing his claim as provided by law.
It is not necessary to first establish a statutory lien upon the homestead under the provisions of section 2, art. 12, of the Constitution, before a debt can be collected for material furnished and labor performed in the improvement thereof by judgment and levy of execution and forced sale of the homestead, but said homestead stands subject to levy and forced sale the same as any other property of the judgment debtor for such debts only as are specially excepted from the homestead exemption by the constitutional provisions.
The case of South Texas Lumber Co. v. Epps, 48 Okl. 322 150 P. 164, in so far as it conflicts with this opinion, is hereby expressly overruled.
Commissioners' Opinion, Division No. 5.
Appeal from Superior Court, Muskogee County; Guy F. Nelson, Judge.
Action by M. M. Holland against J. D. Robbins, Sheriff, and others. From a judgment for defendants, plaintiff appeals. Affirmed.
Bruce & Brewer, of Muskogee, for plaintiff in error.
Brook & Brook, of Muskogee, for defendants in error.
This action was commenced in the superior court of Muskogee county by plaintiff in error filing her petition against the defendants in error on the 16th day of March, 1920. The parties will be referred to in this opinion as plaintiff and defendants, just as they appeared in the lower court.
The petition alleged that the plaintiff was a resident of Muskogee county, and that the westerly 90 feet of lots 14 15, and 16 of block 8, in the Garrett Heights addition to the city of Muskogee, Okl., was owned and occupied by her and her family as a homestead, and that Mr. and Mrs. Joe Scheruble secured a judgment against plaintiff for $120.15, and that a general execution was issued by the court clerk of Muskogee county upon said judgment, and placed in the hands of the sheriff of Muskogee county for service, and that J. D Robbins, sheriff of Muskogee county, Okl., or W. R. Kirk, his deputy, levied upon the above-described homestead and advertised the same for sale; that Mr. and Mrs. Joe Scheruble had brought action in the same proceeding to foreclose a mechanic's lien against said property, and that in said judgment said lien was denied, and that said judgment was not a lien upon the property; and alleged that, unless the defendants were restrained from selling said property, it would work an irreparable damage and injury to plaintiff, and that she had no adequate remedy at law, and that the defendants were not financially able to respond in damages and prayed that they be permanently enjoined from selling said property, and for all other and further equitable relief, and for costs. The execution in general form and a copy of the judgment was attached to the petition. The defendants, Robbins and W. R. Kirk, as sheriff and deputy sheriff, filed a separate answer, denying the allegations in plaintiff's petition, and set up section 2, art. 12, of the Constitution, which will hereafter be referred to in this opinion, and claimed that this provision of the Constitution and the homestead law of the state do not preclude an enforcement of the judgment such as had been rendered in this cause, and that the issuance of an execution is authorized where it is shown that work and material, which is used in constructing improvements on the property, against which and on which a levy was made, was authorized and further alleged that the judgment in this case was rendered for work and material furnished by the defendant Scheruble Heating Plumbing & Repair Shop for improvements on the homestead, and prayed that the injunction be dissolved, that the execution heretofore issued be continued, and property sold under a new and proper order of this court. The defendants Mr. and Mrs. Scheruble, composing the company of Scheruble Heating, Plumbing & Repair Shop, filed their separate answer, in which they allege that they recovered judgment against the plaintiff in case No. 8457 for $120.15, and that the same was for labor and material furnished by them to the plaintiff, which was used in the improvement on the property described and claimed as a homestead by plaintiff, and prayed that the injunction be dissolved, and for an order directing the sheriff and his deputy to proceed to sell said...
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