Sutherland Lumber Co. v. Gale

Decision Date30 April 1929
Docket NumberCase Number: 18961
Citation1929 OK 192,277 P. 242,136 Okla. 233
PartiesSUTHERLAND LUMBER CO. v. GALE et al.
CourtOklahoma Supreme Court
Syllabus

¶0 1. Mechanics' Liens--Materialman's Rights Against Homestead Same as Against Other Real Estate.

A materialman who sells material to a contractor, which material is used in making improvements on a homestead, has and acquires no different or special right to enforce a lien for such material against the homestead than he or it would have for materials furnished and used in making improvements upon any other real estate of the owner.

2. Mechanics' Liens--Filing Lien Statement Unnecessary Where Subcontractor Files Foreclosure Suit Within 60 Days After Labor Last Performed.

Where a laborer, subcontractor, 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 60 days after the date upon which the labor was last performed, and regularly prosecutes such suit, there is substantial compliance with the lien statutes, and no other lien statement need be filed.

3. Same--Contractor as Necessary Party Defendant in Action by Subcontractor--Effect of Showing that Service of Summons Cannot Be Had on Contractor.

In an action by a subcontractor to recover for labor performed in improving real estate and to foreclose a lien therefor, the original contractor is a necessary party defendant, and plaintiff is not entitled to recover a personal judgment against the owner; but if the sheriff's return shows that service of summons cannot be had upon such contractor, the lien of the subcontractor may be enforced against the property, without obtaining a personal judgment against the contractor.

4. Same--Appeal and Error--Reversal of Judgment for Plaintiff and Remand for New Trial After Contractor Made Party Defendant.

In an action brought to enforce a lien claimed by a subcontractor for labor performed, where it is necessary to reverse the judgment because the original contractor is not made a party to the action, the appellate court may, if the facts and equities warrant, as in the instant case, remand the cause, with directions to allow such contractor to be made a party defendant and grant a new trial therein.

5. Same--Judgment Affirmed in Part and Reversed in Part.

Record examined, and held, sufficient to sustain judgment denying lien of Sutherland Lumber Company, but insufficient to sustain the judgment entered for plaintiffs below.

Commissioners' Opinion, Division No. 1.

Error from District Court, Pontotoc County; Orel Busby, Judge.

Action by O. R. Nance and C. H. Perry against Lillie May Gale et al., to recover judgment and foreclose lien for labor performed in making improvements on real estate. Sutherland Lumber Company filed cross-petition, praying foreclosure of lien for materials furnished. Judgment was awarded plaintiffs, and the lumber company, cross-petitioner, was denied a lien and judgment awarded against it for attorney's fee. An appeal was taken by the Sutherland Lumber Company and defendants Gale. Judgment affirmed as to cross-petitioner, and cause reversed and remanded as to defendants Lillie May Gale and Jack Gale. Affirmed in part, and reversed in part.

McKeown & Green, for plaintiff in error.

Wimbish & Wimbish, for defendants and cross-petitioners in error.

LEACH, C.

¶1 This action was commenced in the district court of Pontotoc county by O. R. Nance and C. H. Perry, as plaintiffs, against Lillie May Gale and Jack Gale, wife and husband, Sutherland Lumber Company, and the Farm & Home Savings & Loan Association, defendants, it being alleged by the plaintiffs that they performed labor in placing improvements upon a certain described lot in the city of Ada, the homestead of the defendants Gale, and at the owner's special request, that the amount due for such labor was $ 70, and a first lien therefor was claimed upon the described property and judgment prayed against the defendants Gale for the said sum and for judgment decreeing the same to be a lien against the property and for foreclosure of such lien, including reasonable attorney's fee in the sum of $ 35.

¶2 Sutherland Lumber Company filed its answer and cross-petition in the suit, alleging that it sold to Lillie May Gale and Jack Gale building material which was used in improving the homestead of said defendants; that the balance due for such material was $ 100, and a lien was claimed on the improvements and real estate for such sum, and a judgment was prayed therefor and for a lien and for recovery of $ 35 as attorney's fee for foreclosure of such lien.

¶3 The defendants Gale filed answer to the plaintiff's petition generally denying the allegations thereof, and further alleged that the labor was performed under a contract with one McKerracker, who contracted and agreed with the answering defendants to make certain improvements on the premises involved for a specified sum, which sum was paid in full to the contractor by the defendants after the work and improvements were completed. Further alleged as a defense that the plaintiff had filed no lien statement as provided by law, and that there was a misjoinder of parties in that the original contractor, McKerracker, had not been made a party to the suit as provided by law.

¶4 The defendants Gale filed answer to the cross-petition of the Sutherland Lumber Company, in which they generally denied the allegations of such cross-petition and pleaded that the company had not filed any lien or served notice thereof as provided by law, and had failed to bring the action within the time provided by law; alleged that the cross-petitioner filed its action for the purpose of intimidating the defendants and causing them expense, and prayed that they, the answering defendants, recover an attorney's fee as against the cross-petitioners for the sum of $ 35.

¶5 The cause was tried to the court, who entered judgment in favor of the plaintiffs, Nance and Perry, against the defendants Gale for the sums prayed for and decreed a lien therefor upon the property involved, but denied the claim and prayer of the Sutherland Lumber Company, cross-petitioner, and entered judgment against it in favor of the defendants Gale for an attorney's fee in the sum of $ 35.

¶6 The Sutherland Lumber Company filed its motion for a new trial, likewise the defendants Gale filed their motion for a new trial; both motions were denied, and the Sutherland Lumber Company brings this appeal as plaintiff in error, and the defendants Lillie May Gale and Jack Gale have filed herein their cross-petition in error, in which, they complain of the action of the trial court in awarding judgment against them in favor of plaintiffs, Nance and Perry.

¶7 The several errors complained of by Sutherland Lumber Company may be considered under their assignment:

"That the findings, conclusions of law, and judgment are not supported by the evidence, and are contrary to the law and the evidence."

¶8 The lumber company contends that it contracted with and sold the material direct to the landowners, the Gales; that it brought its suit within four months from the date of furnishing the last material; and that it was unnecessary to file a lien statement therefor. As to its contention that it sold the material direct to the defendants Gale, the trial court found that such lumber and material was sold to and purchased by the contractor, McKerracker; that there was no original or privity of contract to purchase as between the defendants Gale and the lumber company; that the rights of the lumber company were controlled by the provision of section 7463, C. O. S. 1921, relating to a lien by a subcontractor.

¶9 We think the finding of the trial court that the material was sold to and furnished the contractor is reasonably supported by the record and is not against the clear weight of the evidence, and therefore the rights of the lumber company were those of a subcontractor. Had it filed its action to recover the balance due for material within 60 days after the date upon which the material was last furnished, then there would have been no necessity for filing a lien claim in addition thereto under tbe holding of this court in the case of Key v. Hill, 93 Okla. 64, 219 P. 308, and Peaceable Creek Coal Co. v. Jackson, 26 Okla. 1, 108 P. 409, but it failed to file either its action or lien statement within the period prescribed by section 7463, C. O. S. 1921.

¶10 It is contended, however, by the plaintiff in error, Sutherland Lumber Company, that, under the provisions of section 2, article 12 of the Constitution, it is not necessary to file a lien or to proceed under the provisions of statute relating to materialmen's lien in order to recover, for materials furnished and used in improvements upon the homestead, and in support of such contention certain decisions from other jurisdictions are cited wherein it was held that the exemptions from sale and seizure of the homestead did not apply to materials and for work and labor in improving the homestead.

¶11 The following cases from this jurisdiction are referred to as supporting the contention: Ralls v. Toylor Lumber Co., 69 Okla. 170, 171 P. 24; Atlas Supply Co. v. Blake, 51 Okla. 778, 152 P. 601; Holland v. Robbins, 92 Okla. 225, 219 P. 387; Kleindorfer v. Dascomb-Daniels Lbr. Co., 102 Okla. 60, 226 P. 354.

¶12 We find no authority in such cases, under the facts shown therein, to sustain a lien or permit enforcement thereof for materials furnished and used in improving a homestead except under the usual statutory method relating to materialmen, or by personal judgment against the home owner and the usual execution and levy thereunder. All of the Oklahoma cases cited show that the material was sold and furnished direct to the home owner, and a personal judgment was obtained against him therefor and an execution and levy against the homestead was made and sustained.

¶13 It is said in the syllabus in the...

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    ...no lien statement was filed, the filing of the interpleas was sufficient substantial compliance with the statute. Sutherland Lumber Co. v. Gale (1929) 136 Okla. 233, 277 P. 242. ¶12 The claim of J.D. Lackey requires special attention. The record discloses that it is in the sum of $257.45 fo......
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