Indo Oil Co. v. Bennett

On Application for Rehearing.

In connection with the application as to rehearing, it is contended that in the opinion'heretofore filed in this cause the court overlooked the fact that C. H. Hartman, as manager, part-owner and president of the Indo Oil Company, plaintiff in error, was made a party defendant in this action; that the trial court sustained a demurrer to the evidence as against the said defendant C. H. Hartman, plaintiff in error herein, who had filed a disclaimer and answer in which he disclaimed all interest in the leasehold estate and property on which the lien was sought to be foreclosed; that under O. S. A. Title 42, section 176, which provides:

“In an action brought to enforce any lien the party for whom judgment is rendered shall be entitled to recover a reasonable attorney’s fee, to be fixed by the court, which shall be taxed as costs in the action.”

C. H. Hartman was entitled to an attorney’s fee when the action was dismissed as to him. This contention is untenable.

We are of the opinion that this case is governed by the rule announced in Leasburge v. Horner, 110 Okla. 162, 236 P. 880, wherein in the syllabus it was said:

“Under section 7482, Comp. St. 1921 (42 O.S.A. 176) where a defendant, in an action to enforce a lien, by his answer disclaims any interest in the property on which the lien is sought to be enforced, he cannot recover an attorney’s fee against the plaintiff.”

Under this authority, the trial court was correct in disallowing an attorney’s fee to C. H. Hartman, under the record in this case.

DAVISON, C. J., and CORN, LUT-TRELL, HALLEY, and O’NEAL, JJ., concur.