
    JARECKI MFG. CO. v. FLEMING.
    No 16619
    Opinion Filed May 25, 1926.
    Rehearing Denied Jan. 25, 1927.
    Liens — ^Materialman’s Lien ¡Against Personal Property — Failure to FUfc 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 cctunty 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 cannclt, by a lien claimed under such circumstances, subject the property to the -payment of the indebtedness for miaiterial so- furnished to the prejudice of a mortgagee of the property, although the property had been removed from anolther county where the mortgage was filed of record and -the mortgage had not been refiled Gf record in the county to which it was removed within 120 days froim the date of the removal of it to such county.
    (Syllabus by Jarman,. O.)
    Commissioners’ Opinion, Division No. 2.
    Error from District Court, Okmulgee County; James Hepburn, Judge.
    Actiotn by Ed Fleming against Jarecki Manufacturing Company.
    Judgment for plaintiff, and the defendant brings error affirmed.
    M. A. Dennis, for plaintiff in error.
    H. S. Samples, for defendant in error.
   Opinion by

JARMAN, C.

This was an action in replevin by Ed Fleming, as plaintiff, to recover a string of drilling tools Irotai the Jiai'eeki Manufacturing Company, a corporation, defendant. Judgment was for the plaintiff, and the defendant brings error.

The plaintiff was the owner of the property in question, and, on November 20, 1922, sold ¡.he 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 coun-. ty. Thereafter the tools were moved to McIntosh county for the purpose of drilling a well. Default was made in t&e payment of the note, and the plaintiff filed an action in the districc court of Okmulgee county to foreclose the chattel mortgage, and judgment was rendered accordingly. On October 11, 1923, pursuant to order and noltice 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 totals at sheriff’s sale.

After the string of tools was removed to McIntosh county, the plaintiff failed to file a' copy of his mortgage in rhe office of the county clerk of McIntosh cotanty, 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 elf the property to McIntosh county, as provided 'by section 7651, O. S. 1921. The defendant, Jareeki Manufacturing Company, at the instance and request of I-Iays, the owner of the property, began to furnish material and suppllies on January 6. 1923, for the repairing and operating c(f the string of drilling tools, and .continued to furnish such material, according to th'e allegation of the defendant, until October S, 1923. The owner of the property lailed to pay for such material and, on November 26, 1923, the defendant, Jareeki Manufaictur-ing Company, filed its lien statement in the office of the county clerk of McIntosh county, and, on December 23, 1923, the defendant commenced an acticta 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 Jairecki Manufacturing Company became the purchaser thereof and took immediate possession and removed the string of tdols 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 Bays tc( foreclose his chattel mortgage wherein he became the purchaser of the property on October 11, 1923, as above detailed.

The defendant;, Jareeki Manufacturing Company, was not made a party to the action of the plaintiff against Hays to foreclose his chattel mortgage, and Fleming was nob made a party to -the action oc the Jareeki Manufacturing Company against Hays to fclreclose its materialman’s lien; therefore neither is bound by the judgment procured by the other.

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 -tci 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 nob assert his mortgage lien ms 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 Pac. 29, Snodgrass v. J. I. Case Threshing Machine Co., 70 Okla. 303, 174 Pac. 515, and Continental Gin Co. v. Sims, 103 Okla. 191, 229 Pac. 818.

Under the state of the record as abotae recited, the plaintiff, as mortgagee, could not claim a lien on the property prior to the lien of the defendant, for material furnished, by it for the repairing of property frclm. and after 120 days from the time the property was removed to McIntosh county, provided the defendant perfected its material-man’s lien by filing the lien statement within 60 days from the date of the last item of material furnished, as required by section 7455, C. S. 1921. There is ncl dispute about the lien statement having 'been filed on November 26, 1923. Counsel for defendant, in his brief, states, 'and proceeds on the theory, that the last item of material was furnished October 8, 1923. This statement is challenged by the plaintiff. Upon investigation of the record, we find that the itemized statement of the accoiunt attached to the lien statement shows that the last item of material furnished was on September 21, 1923, and the testimony of Mr. Raap, manager of the defendant company, shclws that the last item, was furnished August 8, 1923. Either date, August 8th, or September 21, 1923, is more than 60 days from the date on which the lien statement was filed in the office o(C the county clerk of McIntosh county, and therefore the lien of the defendant company for material furnished did not attach to the property in question and the defendant was not entitled tol the possession of the property as against the mortgagee, Fleming, who retained a lien, as 'between the mortgagor, Harrs, and himself.

Note. — See under (l) 40 C. J. p. 186, §218; p. 194. §228; p. 29S, §383.

The trial court properly determined that, as between the lien claimants, the plaintiff was entitled to the property by virtue or ■his having purchased it at (he foreclosure salat to satisfy his mortgage lien.

The judgment ctf the trial court is affirmed.

By the Court: It is so ordered.  