Smith v. Wilson

SCOTT, J., pro tem. Plaintiff sued to recover certain personal property and obtained judgment for its possession subject to a “lien” in favor of Smith and Graham. After the judgment became final the latter obtained from the court (1) an “order to enforce judgment” and (2) an order directing the issuance of a writ of execution to levy upon and sell said property to satisfy the lien. From these orders made after judgment plaintiff appeals.

The court found that the personal property before the commencement of the action was located in an oil well and at no time was affixed to the realty; that at no time did the owner of the realty or the personal property engage Smith and Graham to furnish any labor or materials, but that defendant Wilson without the knowledge or consent of plaintiff had requested them to do so, and they had furnished labor and materials of value of $1270; that plaintiff had not requested nor consented to their furnishing such labor or materials, and Smith and Graham did not at any time give plaintiff any notice of the performance of said labor or furnishing of said materials. As a conclusion of law the court stated: “From the foregoing findings of fact the court concludes that the plaintiff is entitled to a judgment against the defendants, and each of them, for the recovery of the possession of the goods and chattels described in the complaint, subject to a lien in favor of the defendants Smith and Graham, a copartnership composed of W. L. Smith and W. H. Graham, for labor performed and materials furnished, in the principal sum of $1,270.00 and that plaintiff is entitled to a judgment for his costs incurred herein.” Judgment was thereupon rendered: “Wherefore, by reason of the law and the findings aforesaid, it is ordered, adjudged and decreed that the plaintiff do have and recover of and from the defendants Paul N. Wilson and Smith and Graham, a copartnership composed of W. L. Smith and W. H. Gra[299]ham, the possession of the property described in the complaint . . . (describing it) subject to a lien for labor performed and materials in the sum of $1270 in favor of Smith and Graham, a copartnership. ... It is further ordered, adjudged and decreed that the plaintiff do have and recover his costs of suit herein, taxed in the sum of $50.85.”

The orders from which plaintiff appeals are as follows: (1) Minute order of June 10, 1932: ‘‘Come now the parties by their respective counsel, Hyams & Himrod and Mark A. Hall appearing for plaintiff, and R. Dechter for the defendants, and defendants move the court to enforce judgment. After argument by counsel, said motion is by the court granted.” (2) Written order of June 14: “ ... it appearing to the court that the above action was instituted by the plaintiff for the possession of certain personal property which at the time of the commencement of this action was in the possession of the defendants Smith and Graham under a claim of lien for services rendered by said defendants Smith and Graham in the extraction and removal of said personal property from an oil well and in the transportation and storage thereof in the sum of $1270.00. And it further appearing to the court herein that judgment was rendered that plaintiff was entitled to possession of said property as to the defendant Paul N. Wilson and that the defendants Smith and Graham did have a lien as set forth in their answer in the sum of $1270.00; and it further appearing to the court that the judgment as drawn herein made no provision for the enforcement of said lien of said defendants Smith and Graham in the sum of $1270.00 on said personal property, and it further appearing to the court that said lien so found to be had by said defendants Smith and Graham has not been discharged or paid by the plaintiff herein, and it further appearing to the court that this is a proper case for the court to exercise its inherent power to enforce its judgments: Now, therefore, it is ordered that a writ of execution issue to the sheriff of this county, authorizing the sheriff of this county under and by virtue of said writ of execution to levy upon the personal property in the judgment herein described and to sell the same for the purpose of satisfying said lien of the defendants Smith and Graham in the sum of $1270.00, together with interest at the rate of 7% per annum from the date of the judg