Shaffer-Leverett Boiler & MacH. Co. v. Johnson

BENNETT, C. Shaffer-Leverett Boiler & Machinery Company brought suit in the district court of Ottawa county, Okla., for the enforcement of a mechanic’s lien upon certain real property owned by D. B. Niven. The defendants D. B. Niven and S. O. Byrd filed a demurrer to plaintiff’s petition, which was sustained, and the plaintiff, refusing to plead further, brings the case here for review. It will b'e observed that the defendants in this case are the same as the defendants in the case of Charles Aldridge v. Irwin B. Johnson et al., 132 Okla. 257, 270 Pac. 322, just decided by this conrt. The parties will be referred to in the order in which they appeared in the trial court. The plaintiff in this cause was represented by the same counsel who represented the plaintiff in cause No. 18058, and the same counsel who represented the defendants in the last-named cause are counsel for the defendants in this cause. The real estate upon which this lien is sought to be fastened in the two eases is identical, and the only difference in the two cases is that, in the case at bar, the amount sought to be recovered and made the basis of a lien by plaintiff is $639.65; representing an account between plaintiff and defendant Johnson for labor and materials furnished in the repair of a certain steam boiler, and the erection of a smokestack on the mining property referred to in each of the cases. In each case, the same lease, the same contracts with reference to the assignment thereof, and the same contract for lease are involved ; the real estate and personal property and improvements are the same and the exhibits attached to the petitions are the same in each ease, and while the parties plaintiff arte different, the. essential material facts with reference to the making of the improvements and the furnishing of labor are not essentially different, except in amount and time and value; *266 Barring a preliminary statement of facts disclosing the differences indicated briefly herein, tbe briefs in tbe two cases are identical, Tbe same contentions are made by tbe plaintiff, tbe same argument offered, and tbe same authorities relied upon. In fact, tbe wording of each brief, except as to tbe preliminary statement of fact, is identical in tbe two cases, and in tbe oral argument, it was stated that tbe decision in one case would and should be decisive of tbe other. For these reasons, and upon tbe authority of Charles Aldridge v. Irwin B. Johnson et al., 132 Okla. 257, 270 Pac. 322, this day decided, the judgment of tbe trial court in sustaining tbe demurrer is affirmed. TEEHEE, LEACH, REID, and HERR, Commissioners, concur. By tbe Court: It is so ordered.