Raymer v. Comley Lumber Co.

• Decision Date: 27 November 1934
• Docket Number: Case Number: 22965
• Citation: 169 Okla. 576,38 P.2d 8,1934 OK 688
• Parties: RAYMER et ux. v. COMLEY LUMBER CO.
• Court: Oklahoma Supreme Court

1934 OK 688

38 P.2d 8

169 Okla. 576

RAYMER et ux. v. COMLEY LUMBER CO.

Case Number: 22965

Supreme Court of Oklahoma

Decided: November 27, 1934

Syllabus

¶0 1. Appeal and Error--Review of Equity Case--Foreclosure of Materialman's Lien.

An action in foreclosure of a materialman's lien is one of equitable cognizance, and this court will, when facts are undisputed, render such judgment as they require. Hughes v. Baker, 169 Okla. 320, 35 P.2d 926.

2. Constitutional Law--Statute of Limitations as Rule of Property--Vested Right in Defense.

The statute of limitations is a rule of property and not of procedure. A party haying once been relieved by virtue of the statute, the right to rely upon this defense is a vested right and he cannot be deprived of it except with his own consent. Ross v. Dural, 13 Pet. 45, 10 L. Ed. 51.

3. Limitation of Actions--Presentation of Defense Where Petition Shows on Face That Cause of Action Is Barred.

Where a petition on its face shows that the cause of action set out therein is barred by the statute of limitations, it is error not to sustain a general demurrer to such petition, or to overrule an objection to the introduction of any evidence under such petition. Martin et al. v. Gassert, 40 Okla. 608. 139 P. 1141; M., K. & T. R. Co. v. Wilcox, 32 Okla. 51, 12l P. 650.

4. Husband and Wife--Agency of Husband for Wife not Presumed--Burden of Proof.

The agency of the husband for the wife will not be presumed from the fact of the marital relation alone, and the burden of proving such agency is on the one alleging it. Hughes v. Baker, supra.

Appeal from District Court, Texas County; F. Hiner Dale, Judge.

Action by Comley Lumber Company against R. H. Raymer, Lizzie Raymer et al. Judgment for plaintiff, and defendants R. H. Raymer and Lizzie Raymer appeal. Reversed and remanded, with directions.

Ross Rizley and Orlando F. Sweet, for plaintiffs in error.

R. L. Howsley, for defendant in error.

PER CURIAM.

¶1 This action was begun in the district court in and for Texas county, state of Oklahoma, on January 4, 1929, at which time Comley Lumber Company, a corporation, filed suit against Lizzie Raymer and R. H. Raymer, husband and wife, J. W. Raymer, Pittsburgh Mortgage & Investment Company, and American First Trust Company, as receiver for the F. D. Collins Investment Company, defendants.

¶2 The defendants, other than the Raymers, made default, and while they are not especially mentioned in the judgment, it attempts to bar their interest. Personal judgments were rendered against Lizzie Raymer and R. H. Raymer; verdict was directed in favor of J. W. Raymer; though the journal entry of the judgment does not discharge, nor award him his costs.

¶3 The plaintiffs in error here were defendants below, defendant in error was plaintiff below, and for convenience will be referred to as they appeared in the lower court.

¶4 In order to understand our holdings it will be necessary to analyze the petitions filed in this cause. The original petition alleged:

"That the defendant, J. W. Raymer, at all times hereinafter mentioned, was not now is the owner in fee simple of the following described tracts of land with all buildings thereon, situate in Texas county, Oklahoma, to wit: The S. 1/2 of N.E. 1/4 and N. 1/2 of S.E. 1/4 of sec. 15, twp. 3 N., range 14 E. of Cimarron Meridian.

"That the defendant, R. H. Raymer, acting as agent of the owner of said abovedescribed premises and with full knowledge and consent of said owner of the abovedescribed premises aforesaid, did secure from this plaintiff and plaintiff did furnish certain building materials for the purpose and which were used on the above-described premises in the building and making of various improvements thereon; the date upon which the material for said improvements were last furnished by this plaintiff was September 17, 1927."

¶5 Petition then alleges the filing of "Notice of Materialman's Lien" in the proper office, Texas county, Okla., and the instrument so alleged to have been filed is attached to the petition, marked "Exhibit A" and made a part thereof.

¶6 As to the defendants Lizzie Raymer and R. H. Raymer, her husband, the pleader contents himself by saying:

"That the defendants, Lizzie Raymer and R. H. Raymer, her husband, claim some right, title, interest, lien or estate in and to the above-described tracts of land, but plaintiff alleges that any right that they or either of them may have or claim in, to, or upon the above-described tracts of land or either of them is subject and inferior to the right of this plaintiff."

¶7 He then prays judgment against J. W. Raymer for $ 1,465.60, with interest at 10 per cent. from January 12, 1928, and $ 250 attorney's fee.

¶8 Exhibit A, omitting the statement of account, was as follows:

"Guymon, Okla. Yard.

"Liens, Mechanics and Material Men, No. 1, "Statement by Any Person Under Contract with the Owner, etc., for Labor or Material, etc.

"Name of Owner J. W. Raymer

"Name of Contractor

"Name of Claimant The Comley Lumber Company (a corporation)

"Said contractor and claimant claims a Lien upon the following described property, to wit: South half (1/2) of northeast quarter (1/4) and north half (1/2) of southeast quarter (1/4), section fifteen (15) township three (3), range fifteen (15), Texas county, state of Oklahoma; for that they did under contract with R. R. Shull and R. H. Raymer, father, acting as agents, owner of the property aforesaid furnish material for various improvements, barn, hen house, etc., in and upon said property.

"The amount claimed for said material is $ 1,465.60, fourteen hundred sixty-five and 60/100 dollars, and said materials and the items thereof, as nearly as practicable, are set forth in the bill of items hereto attached, made a part of this statement and marked 'Exhibit A.'

"That material was last furnished under said contract on the 17th day of September, 1927.

"That all of said material was used in the erection and construction of said above named improvements.

"The Comley Lumber Company,

"C. A. Comley, Secy.

"Claimant."

¶9 This was verified by the secretary of the lumber company. It will be observed that the only person against whom a money judgment was asked was J. W. Raymer. The only connection R. R. Shull and R. H. Raymer had with the transaction, under the petition and its controlling exhibits, was that of agent for J. W. Raymer. As for Lizzie Raymer and R. H. Raymer, we have seen that they were merely notified to declare what, if any, interest they had in the property; as were the defendants Pittsburgh Mortgage & Investment Company and American First Trust Company.

¶10 The pleadings remained in that condition for almost two years, that is, until December 9, 1930, at which time an amended petition was filed. J. W. Raymer is again named as owner of the lands, but a variance is apparent in this: The original petition alleges that R. H. Raymer and R. R. Shull acted as agents for the owner and with full knowledge and consent of the owner did secure from the plaintiff, etc., the building materials.

¶11 In the first amended petition, the allegation is:

¶12 'That the defendants did secure from this plaintiff, and the plaintiff did furnish said defendants with certain building materials for the purpose of and which materials were used on the above-described premises in the building and making of various improvements thereon. The date upon which the materials for said improvements was last, furnished by plaintiff was on September 17, 1927."

¶13 However, the plaintiff alleges in this that the defendants Lizzie and R. H. Raymer claim same right, title, interest, etc., in the lands, but they were inferior to the rights of the plaintiff. The lien statement attached to the original petition is identical with the statement attached to the first amended petition. This exhibit, of course, controls and limits the allegations of the petition. See Ferry v. Brophy, 116 Okla. 99, 243 P. 506.

¶14 The opinion in part is as follows:

"* * * For on the company's own pleading he was not made a party to the lien, as shown by the exhibit attached to the petition, neither was he made a party to the liens claimed by Brophy, and, under the rule established by this court, exhibits attached to a pleading upon which remedy is based take precedence over any allegations in the pleading. This court, in the case of Mary A. Hyde v. City of Altus, 92 Okla. 170, 218 P. 1081, said.

"'Where a written instrument is the foundation of a civil action, the original, or a copy thereof, should be filed as an exhibit to the pleading, and in case of variance between the pleading and the exhibit, the exhibit must control. The instrument is held to be a part of the complaint.'

"To the same effect are the cases of First National Bank of Arkansas City v. Jones, 2 Okla. 353, 37 P. 824; Long v. Shephard, 35 Okla. 489, 130 P. 131; Caiman v. Kreipke, 40 Okla. 516, 139 P. 698; Dabney v. Hathaway, 51 Okla. 658, 152 P. 77; Friend v. Southern State Life Ins. Co., 58 Okla. 448, 160 P. 457.

"This being the state of the pleadings in this case, we are inclined to believe that the court could not and should not have rendered judgment against E. K. Forty foreclosing liens on his interest, when the exhibits show that such liens had no existence, as such judgment of foreclosure is outside and beyond the issues."

¶15 A judgment against either R. H. Raymer or Lizzie Raymer for any sum or for the foreclosure of any interest would have been outside the issues and a nullity.

¶16 Then, on the 19th of December, 1930, after answer had been filed to first amended petition, the plaintiff filed his second amended petition.

¶17 This petition recites "leave of court having been obtained." Though the record fails to disclose any application for leave, or any action of the court concerning it, it was nevertheless acted upon by all parties.

¶18 There is nowhere any showing that plaintiff had been prevented from acquiring knowledge of the true state of facts by...