Oil Field Salvage Co. v. Simon

ON REHEARING.

Respondent Simon has filed a motion for rehearing, praying that sub-paragraph (c) of the trial court’s judgment be corrected to agree with other parts of the judgment. Both parties agree that one part of the judgment is in conflict with *468other parts, but do not agree on which part is incorrect. Petitioner’s affidavit fixed a materialman’s lien on only one-fourth interest in the leasehold estates in tracts 2 and 3, and therefore his lien is not superior to that of respondent as to the “remaining three-fourths” interest. The trial court’s judgment limited petitioner’s lien to a one-fourth undivided interest, and ordered the property sold and the proceeds distributed among the various judgment creditors. Sub-paragraph (b) of the judgment provides that the Oil Field Salvage Company shall receive its pro rata share of the one-fourth proceeds derived from the sale of tract 3, the 80-acre tract, while sub-paragraph (c) provides that it shall also participate in the distribution of the “remaining three-fourths” of the proceeds derived from the salfe of tract 3. This conflict in the judgment was presented by respondent in the Court of Civil Appeals and in this court by proper assignments.

Inasmuch as petitioner had a lien on only one-fourth of the leasehold interest in tract 3, it is not entitled to a priority over respondent in a greater amount. As petitioner has no lien on “the remaining three-fourths of the proceeds,” his right to participate therein is inferior to those of respondent.

Respondent’s motion for rehearing is granted. The judgment of this Court entered on January 27, 1943, is amended so as to provide that the judgment of the Court of Civil Appeals is reversed and that of the trial court is reformed to conform with the holdings herein and as reformed is affirmed.

Opinion delivered March 3, 1943.