Nat'l Gas Co. v. Iron, Case Number: 28310

• Decision Date: 29 November 1938
• Docket Number: Case Number: 28310
• Citation: 185 Okla. 415,93 P.2d 529,1938 OK 604
• Parties: NATIONAL GAS CO. et al. v. ADA IRON & METAL CO.
• Court: Oklahoma Supreme Court

1938 OK 604

93 P.2d 529

185 Okla. 415

NATIONAL GAS CO. et al. v. ADA IRON & METAL CO.

Case Number: 28310

Supreme Court of Oklahoma

Decided: November 29, 1938

Syllabus

¶0 1. MECHANICS' LIENS--Timely Suit for Foreclosure Dispensing With Filing Any Other Lien Statement.

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 the time prescribed by the statute for the filing of lien statement, and regularly prosecutes such suit, there is substantial compliance with the lien statutes, and no other lien statement needs to be filed.

2. SAME--Lien Claimant May Enforce Lien Against Only Property Actually Constructed or Repaired by His Labor or Material.

The statute gives the materialman, mechanic, or laborer a lien upon whatever interest or estate the owner thereof has in the property, whether It be a freehold, leasebold. or other estate loss than a freehold; but the lien claimant may enforce his lien against only the property actually constructed or repaired by his labor or material, and Is not required to enforce it against the entire interest of the owner in the property as a whole.

Appeal from District Court, Pontotoc County; Tal Crawford, Judge.

Action by the Ada Iron & Metal Company. a copartnership composed of Sam ;Sachs and Sidney Sachs. against the National Gas Company. C. 1). Skirvin, and R. C. Simpkins. Judgment for plaintiff, and defendant Simpkins appeals. Affirmed.

A. H. Huggins, for plaintiffs in error.

C. F. Green, for defendant in error.

CORN. J.

¶1 This action was commenced in the district court of Pontotoc county by the defendant in error, plaintiff below, against the plaintiffs in error. defendants below, said parties being referred to herein as they appeared in the trial court, to recover judgment and to declare and foreclose lien for materials and supplies furnished by plaintiff to defendants for the construction of a gas pipe line extending from a designated gas well in the Fittstown area to the town of Stonewall in said county and a gas distributing system in said town to supply gas for domestic and commercial use to the Inhabitants thereof. The cause was tried to a jury, and it returned a separate verdict against each of the defendants, National Gas Company, C. D. Skirvin, and R. C. Simpkins, in favor of the plaintiff. The court thereupon rendered judgment jointly against said defendants for $567.72, and $100 attorneys' fees, and the costs of the action. The court found that the National Gas Company was not a corporation, at that time, but was used as a trade-name under which the defendant R. C. Simpkins conducted his business of supplying gas to said municipality, and that the said R. C. Simpkins was the sole owner of the business and of said pipe line and distributing system, and all property held under the name of the National Gas Company. The court further decreed a materialman's lien against said property in favor of the plaintiff and decreed a foreclosure of said lien, and ordered the sheriff to levy upon and sell according to law all casing, pipes, fixtures, machinery, and equipment of whatever kind or nature belonging to the defendants and used in said gas distributing system for the satisfaction of said judgment.

¶2 The judgment against the National Gas Company and C. D. Skirvin was by default, while the defendant R. C. 'Simpkins prosecuted his defense under a verified general denial, and the said R. C. Simpkins is the sole appellant from said judgment.

¶3 The defendant's main contention is: That the court erred In adjudging that the plaintiff bad a lien on property of the defendant, since the whole proceeding of plaintiff was based on a claim of right of lien under statutes providing for lien on personal property, sections 11001, 11002, and 11004, O. S. 1931, whereas said claim should have been based on section 10977, O. S. 1931, if plaintiff was entitled to any lien at all.

¶4 The defendant Simpkins, operating under the above trade-name, which at one time was a corporation, but whose charter had been canceled, was the owner of the pipe line and distributing system involved. It Is not entirely clear from the record whether C. D. Skirvin was a contractor or merely an employee of Simpkins, but it does appear that both Simpkins and Skirvin had something to do with ordering the materials and that Simpkins knew that all the materials so...