JARECKI MFG. CO. v. FLEMING

JARECKI MFG. CO. v. FLEMING
1926 OK 499
252 P. 17
123 Okla. 147
Case Number: 16619
Decided: 05/25/1926
Supreme Court of Oklahoma

JARECKI MFG. CO.
v.
FLEMING.

Syllabus

¶0 Liens--Materialman's Lien Against Personal Property--Failure to File in 60 Days--Priority of Chattel Mortgage.
A materialman, who fails to file a lien statement in the office of the county clerk of the county in which the personal property is situated within 60 days after the furnishing of the last material for the altering or repairing of such property, shall be deemed to have waived his rights to a lien on the property for the amount due for material so furnished; and cannot, by a lien claimed under such circumstances, subject the property to the payment of the indebtedness for material so furnished to the prejudice of a mortgagee of the property, although the property had been removed from another county where the mortgage was filed of record and the mortgage had not been refiled of record in the county to which it was removed within 120 days from the date of the removal of it to such county.

M. A. Dennis, for plaintiff in error.
H. S. Samples, for defendant in error.

JARMAN, C.

¶1 This was an action in replevin by Ed Fleming, as plaintiff, to recover a string of drilling tools from the Jarecki Manufacturing Company, a corporation, defendant. Judgment was for the plaintiff, and the defendant brings error.

¶2 The plaintiff was the owner of the property in question, and, on November 20, 1922, sold the same to R. S. Hays, who executed to the plaintiff a note and mortgage on the string of tools to secure the balance of the purchase price. The tools were located in Okmulgee county and the chattel mortgage was immediately filed of record in that county. Thereafter the tools were moved to McIntosh county for the purpose of drilling a well. Default was made in the payment of the note, and the plaintiff filed an action in the district court of Okmulgee county to foreclose the chattel mortgage, and judgment was rendered accordingly. On October 11, 1923, pursuant to order and notice of sale, the string of tools was sold by the sheriff to satisfy the judgment of Fleming against Hays, and the plaintiff purchased the string of tools at sheriff's sale.

¶3 After the string of tools was removed to McIntosh county, the plaintiff failed to file a copy of his mortgage in the office of the county clerk of McIntosh county, and, therefore, the chattel mortgage filed in Okmulgee county ceased to operate as notice to subsequent creditors after 120 days from the date of removal of the property to Mclntosh county, as provided by section 7651, C. S. 1921. The defendant, Jarecki Manufacturing Company, at the instance and request of Hays, the owner of the property, began to furnish material and supplies on January 6, 1923, for the repairing and operating of the string of drilling tools, and continued to furnish such material, according to the allegation of the defendant, until October 8, 1923. The owner of the property failed to pay for such material and, on November 26, 1923, the defendant, Jarecki Manufacturing Company, filed its lien statement in the office of the county clerk of McIntosh county, and, on December 23, 1923, the defendant commenced an action in the district court of McIntosh county against Hays to foreclose its lien for materials furnished, and procured a judgment against Hays and a decree foreclosing the lien, and, on April 7, 1924, the string of tools was sold pursuant to said judgment and decree of foreclosure and the Jarecki Manufacturing Company became the purchaser thereof and took immediate possession and removed the string of tools to Okfuskee county. Fleming brought this action to recover the string of tools on the ground that he was the owner thereof by virtue of his action against Hays to foreclose his chattel mortgage wherein he became the purchaser of the property on October 11, 1923, as above detailed.

¶4 The defendant, Jarecki Manufacturing Company, was not made a party to the action of the plaintiff against Hays to foreclose his chattel mortgage, and Fleming was not made a party to the action of the Jarecki Manufacturing Company against Hays to foreclose its materialman's lien; therefore neither is bound by the judgment procured by the other.

¶5 The defendant contends that, since the plaintiff failed to refile his mortgage in McIntosh county, to which the string of tools was removed, the filing of the chattel mortgage in Okmulgee county ceased to operate as notice to the defendant, a subsequent creditor of Hays, after 120 days from the time the property was removed to McIntosh county, and that the plaintiff, as mortgagee, could not assert his mortgage lien as against the defendant for materials furnished for the repairing of said property. To this proposition the defendant cites First Nat. Bk. of Vinita v. Guess, 72 Okla. 125, 179 P. 29, Snodgrass v. J. I. Case Threshing Machine Co., 70 Okla. 303, 174 P. 515, and Continental Gin Co. v. Sims, 103 Okla. 191, 229 P. 818.