Key v. Hill
| Decision Date | 26 June 1923 |
| Docket Number | 11466. |
| Citation | 219 P. 308,93 Okla. 64,1923 OK 421 |
| Parties | KEY ET AL. v. HILL. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Oct. 23, 1923.
Syllabus by the Court.
Where a case is tried to a jury, they are the triors of the facts and where there is conflicting evidence it is not the province of the appellate court to weigh the evidence.
Where there is evidence in the record, reasonably tending to support the verdict of the jury, and no substantial error appears in the record prejudicial to the plaintiff in error the judgment should not be disturbed on appeal.
The law allows reasonable attorney fees in foreclosure of laborer's, mechanic's, and materialmen's lien cases, but there is no fixed standard of what is reasonable. Attorney fees are usually based upon the amount involved and the amount of work done, and, where a witness for the plaintiff testified that $1,000 would be a reasonable fee and a witness for the defendant testified $200 would be a reasonable fee, and it appears that the amount claimed by plaintiff was approximately $2,600, and the defendant makes claim against plaintiff for damages, making it necessary to defend against such claim, and the trial lasts three days and a verdict returned for plaintiff for $1,250, and motion for a new trial was filed and the trial judge had the whole matter of the work done before him, and fixed the fee for plaintiff's attorney at $500, the appellate court cannot say that the amount is unreasonable and exorbitant.
By section 7461, Comp. Stat. 1921, such liens are given a priority over all subsequent incumbrances, and where a loan company takes a mortgage and makes a loan upon lots, while buildings to be placed thereon are in course of construction such loan company acquired its rights with full notice of lien claims of laborers, mechanics, and materialmen, accrued and accruing, until the construction of the buildings is completed.
Where a laborer, mechanic, or materialman files his lien claim within four months after the completion of the labor or other service rendered, or the last of such materials furnished, in the office of the court clerk, in the county where the property sought to be charged is located, and such lien claim gives the name of the owner of the property, the name of the claimant, and describes the property to be charged with the lien, and fixes the amount of the claim, and gives the date the last services were performed or material furnished, and where the claimant has signed the lien claim and the verification thereto, it is not fatally defective and a nullity, even though no itemized statement is attached thereto, and the officer before whom the claim is verified fails to sign the jurat at the end of the claim, or even though the claim is not in fact verified, and upon the trial of the case brought to foreclose such lien the trial court should permit the lien claim statement to be amended under section 7478, Comp. Stat. 1921, in furtherance of justice, by attaching thereto the itemized statement and by permitting the lien claimant to verify the claim.
Where a laborer, mechanic, or materialman files suit for foreclosure of his lien, in the office of the court clerk in the county where the property sought to be charged is located, within four months after the completion of the services rendered or the last item of the material is furnished, and regularly prosecutes such suit, there is substantial compliance with the lien statutes, and no other lien statement need be filed.
Commissioners' Opinion, Division No. 4.
Appeal from District Court, Okmulgee County; Mark L. Bozarth, Judge.
Action by Walter L. Hill against J. B. Key and others. From a judgment for plaintiff, defendants appeal. Affirmed.
George C. Beidleman and Wallace & Stephens, all of Okmulgee, for plaintiffs in error.
A. L. Emery, of Okmulgee, for defendant in error.
The plaintiff, Walter L. Hill, began this action in the district court of Okmulgee county, Okl., against the defendants, by filing his petition in the district court on the 20th day of April, 1919. Suit was brought for a balance of $2,620, claimed to be due and unpaid upon a written contract made between the plaintiff and defendant J. B. Key, under which contract the plaintiff was to render services for the said defendant in the erection of two certain buildings, one to be erected on North Seventh street, and the other to be erected on East Seventh street, both in the city of Okmulgee, and to have the same declared to be a lien upon the said buildings and the lots upon which they are located, and for foreclosure to satisfy whatever judgment might be recovered and the costs incident to the action, including a reasonable attorney fee, alleged to be in the sum of $300. The defendant Farm & Home Savings & Loan Association of Missouri, a corporation, appears to hold mortgages of record upon the property described, and was made a party defendant for that reason. Plaintiff sought to have the amount found to be due him declared a prior lien to the mortgages held by said corporation. The contract sued on was dated May 1, 1918. The lien claim of the plaintiff seems to have been dated April 29, 1918, and was filed in the office of the court clerk at about the time the suit was filed.
The defendants J. B. Key and Annie B. Key appeared and filed a motion to make plaintiff's petition more definite and certain, which was sustained in part and overruled in part, and on the 3d day of July, 1919, plaintiff filed an amendment to the petition in which he changes his claim for attorney fees from $300 to one per cent. of the cost of the construction of the buildings on which the lien was sought to be foreclosed.
All of the defendants joined in the answer to the petition, which answer was filed August 6, 1919. In the answer, defendant J. B. Key admits that he entered into the contract sued on but denies that the plaintiff has carried out the contract, and alleges that the plaintiff has greatly damaged him by his failure to perform, and prays damages in the sum of $8,000. On behalf of the defendant corporation, the answer pleads that the corporation is an innocent holder, in that, at the time of taking the mortgages, it knew nothing of the plaintiff's contract or lien claim. The mortgages were dated June 20, 1918, and were filed for record on June 22, 1918.
Issues were joined by the reply on the part of the plaintiff, by way of general denial, on the 15th day of September, 1919. The case was tried to a jury; the trial beginning on the 10th day of October, 1919, and a verdict returned by the jury on the 13th day of October, 1919, in favor of the plaintiff, and fixing the amount of his recovery at $1,250. Defendants filed their motion for a new trial on the 15th day of October, 1919.
It seems that the matter of attorney fees for plaintiff was, by agreement of the parties, reserved for the court until a later date. However, one witness testified for the plaintiff upon the trial that a reasonable fee in the case would be $1,000. At a later date and upon a hearing before the court, at which all the parties appeared, a witness for the defendants testified that $200 would be a reasonable fee for plaintiff's attorney. The court fixed the attorney fee at $500, and entered judgment for the plaintiff against the defendant J. B. Key for $1,250 debt, $500 attorney fee, and held the same to be a prior lien upon the buildings and on the lots upon which the buildings were located, and entered judgment of foreclosure.
The defendants filed a supplemental motion for a new trial assigning errors of the court occurring upon the trial, the insufficiency of the evidence, error in assessment of attorney fee in the exorbitant sum of $500, and...
To continue reading
Request your trial