Landers v. Bank of Commerce of Okmulgee

• Decision Date: 12 November 1924
• Docket Number: Case Number: 13934
• Parties: LANDERS et al. v. BANK OF COMMERCE OF OKMULGEE et al.
• Court: Oklahoma Supreme Court

1924 OK 1015

233 P. 200

106 Okla. 59

LANDERS et al. v. BANK OF COMMERCE OF OKMULGEE et al.

Case Number: 13934

Supreme Court of Oklahoma

Decided: November 12, 1924

Syllabus

¶0 1. Appeal and Error--Time for Appeal -- Filing Unnecessary Motion for New Trial.

Where a motion for a new trial is unnecessary or unauthorized by statute, the filing of such a motion does not operate to extend the time within which appeals must be perfected in the Supreme Court.

2. Same--Trial on Agreed Statement of Facts.

Where a cause is tried upon an agreed statement of all the ultimate facts, leaving for the court the sole question of the application of the law to such ultimate facts, a motion for a new trial is unnecessary and unauthorized by statute and does not extend the time within which an appeal must be perfected in the Supreme Court, and the time for perfecting such appeal runs from the date judgment is rendered, and not from the date of the overruling of such unnecessary and unauthorized motion.

3. Same--Failure to Appeal in Time--Dismissal.

Where an appeal is hot perfected in this court within the time provided by statute applicable to the instant case, this court is without jurisdiction to consider and determine the same, and the attempted appeal will be dismissed.

4. Oil and Gas--Materialmen's Liens--Priority of Mortgage.

A recital in a mortgage covering oil and gas leasehold properties "that the mortgagor will not permit the security to be depreciated, lessened or reduced, and the mortgagor will faithfully care for and diligently operate all of said leases; and do such development as may be necessary,," does not constitute the mortgagor the agent of the mortgagee for the purpose of purchasing supplies and equipment and giving to materialmen a lien upon the mortgaged property superior to the mortgage lien.

5. Same.

Where material and equipment for developing oil and gas properties are furnished the owner of the leasehold, the lien of the persons furnishing such material and equipment is inferior and junior to the lien of valid mortgage executed and duly filed and recorded prior to the furnishing of such material and equipment.

Thompson & Smith, for plaintiff in error Landers et al. G. R. Horner and Beckett & Lewis, for plaintiffs in error Atlas Supply Company and Continental Supply Company.

Randolph, Haver & Shirk, for defendants in error.

RUTH, C.

¶1 This appeal grows out of an action originally filed by John H. Rebold against the Burk Petroleum Company and others, wherein it was sought to have foreclosed a certain mortgage executed by the Burk Petroleum Company in favor of Rebold, said mortgage covering certain oil and gas mining leases. The plaintiff in error Landers and others were engineers, roustabouts, and laborers employed by the Burk Petroleum Company, and intervened and filed their claim for wages due, and they shall be designated as the "labor lienors" in this opinion. The plaintiffs in error Atlas Supply Company and the Continental Supply Company filed their lien claims for materials furnished the Burk Petroleum Company, and they shall be designated as the "supply companies" and while the defendants and interveners are numerous, the labor lienors and supply companies are the only parties appealing, and the question involved is whether or not their various liens are superior to the mortgage lien, it being admitted that all the labor was performed and materials furnished after the mortgage lien attached. The defendants in error move to dismiss the appeal for that the appeal was not filed in this court within six months after final judgment rendered adjudicating their various claims. The record discloses that the original cause for foreclosure of the mortgage was tried on January 9, 1922, and judgment of foreclosure rendered, and on the same date judgment was entered for the labor lienors and supply companies, for the amount of their claims, but declaring their several liens junior or inferior to the mortgage lien, and from this judgment the lienors appeal. At the trial of the cause, counsel for the labor lienors submitted his cause upon the following statement:

"Now if you will raise no question of fact about it, will agree that these are O. K. statements; will agree that the amounts of the claims are correct for the time they worked and will agree to it to be the monthly wage and wages one claims by a superintendent working by the month, and they can agree on the correctness of the amount for each man, then we will agree that the mortgage was made and filed as they contended, by the mortgagee and leave the question of law as to the priority to be taken care of in argument, otherwise the correctness and justness of my claims are not admitted and I am not ready because I will have to have the foreman and the superintendent to prove them."

¶2 This was agreed to by opposing counsel and this agreed statement was read into the record, and counsel for the labor lienors then said "Now that just leaves the question of priority as I understand it." After argument and submission on the question of priority the court rendered judgment decreeing the labor liens and supply companies liens junior or inferior to the mortgage lien, and the labor lienors in open court gave notice of their intention to appeal to the Supreme Court in conformity with the statute, but on January 11, 1922, they filed their motion for a new trial and this motion was by the court overruled on June 9, 1922, and the appeal was perfected and filed in this court on November 13, 1922, or more than 10 months after judgment rendered upon the agreed statement of facts. It has been repeatedly held by this court, and is a well settled rule of law in this state and in most all of the states, that where a motion for a new trial is unnecessary, the filing of such a motion does not operate to extend the time within which the appeal must be perfected by filing the petition in error and case-made, or transcript of the record in this court. Cowart v. Parker, Washington Co., 40 Okla. 56, 136 P. 153; St. Louis & S. F. Ry. Co. v. Nelson, 40 Okla. 143, 136 P. 590; Clapper v. Putnam Co., 70 Okla. 99, 158 P. 297; Chestnut v. Overholser, 75 Okla. 190, 182 P. 683; McDonell v. Continental Supply Co., 79 Okla. 286, 193 P. 524; Ashinger v. Local Union No. 276, 81 Okla. 206, 197 P. 170; Small v. Rice, 82 Okla. 158, 198 P. 998; Crawford v. Shintaffer, 92 Okla. 22, 217 P. 867. Was a motion for a new trial necessary so far as the labor lienors were concerned? It was agreed by counsel representing all parties, that the laborers had performed the work; that the wages were as represented; that the amounts of their claims were correct and due, and that they had a valid lien. There was no fact left for the court to make a finding upon, and only the bare legal question of priority was to be considered, and where a case is tried upon an agreed statement which eliminates all question of fact, a motion for a new trial is unauthorized by statute; and the time for making and serving a case-made runs from the date of the rendition of judgment, unaffected by such motion or order overruling the same. Dunlap v. C. T. Herring Lumber Co., 44 Okla. 475, 145 P. 374; Board of County Commissioners of Garfield County v. Porter, 19 Okla. 173, 92 P. 152; St. L. & S. F. R. Co. v. Nelson, 40 Okla. 143, 136 P. 590; Oxford v. State, 80 Okla. 103, 194...