LAVENDER, Justice:
This was an action in the District Court of Washita County, Oklahoma brought by Swan-Sigler, Inc., a corporation, hereinafter called plaintiff, against Garland Black and Verna Black, husband and wife, hereinafter called defendants Blacks. The [301] action also was against one Stephens, an electrical contractor, who is not a party to this appeal. The plaintiff prayed for money judgment against Stephens and for foreclosure of a materialman’s lien against the real property upon which the improvement was made and which was owned by the defendants Blacks. The cause proceeded through the pleading stage with the filing •of an amended answer by the defendants Blacks in which they alleged payment in full and other defenses and prayed that the plaintiff take nothing and that these defendants be allowed an attorney fee of .$175.00, together with all other proper, legal .and equitable relief.
After the case was at issue as between the plaintiff and the defendants Blacks (the defendant Stephens having made no .appearance), the trial court awarded a default judgment against Stephens, and the plaintiff filed a voluntary dismissal of its petition as against the defendants Blacks. Thereafter the trial court entered a judgment for the defendants Blacks and against the plaintiff for an allowance of $150.00 attorney fee to be taxed as costs in the action. It is from this judgment of the trial court allowing the recovery of attorney fee that plaintiff brings this appeal.
Plaintiff presents one proposition as grounds for the reversal of the judgment of the trial court. This proposition is: “In an action brought to foreclose a material-man’s lien, an attorney’s fee may only be allowed to a party for whom judgment is rendered.” The defendants Blacks in response thereto argue that plaintiff’s right to •dismiss its action was not unqualified, suggesting that to allow the plaintiff to dismiss under these circumstances so as to defeat the defendants Blacks’ claim for an attorney fee would be prejudicial to these defendants, and further suggesting that here these defendants in their Amended Answer had prayed for “affirmative relief” when they “affirmatively asked the court to award the defendants attorney fees.” The defendants seem to take the further position that they became the “prevailing parties” in the lien foreclosure action as between them and the plaintiff when the latter filed its dismissal, and that as such they became entitled to an allowance of attorney fees, citing in support of this theory Keaton et al. v. Branch, 104 Okl. 287, 231 P. 289.
Considering first the right of the plaintiff in this cause to dismiss its petition against the defendants Blacks prior to final submission to the court or jury, we note that the legislature felt that this right of a plaintiff was important enough to call for a specific provision in the statutes. 12 O.S.1961, § 684 provides in part:
“A plaintiff may, on the payment of costs and without an order of court, dismiss any civil action brought by him at any time before a petition of intervention or answer praying for affirmative relief against him is filed in the action. * * * »
The statute goes on to provide that the plaintiff may even dismiss after the filing of a petition of intervention or answer praying for affirmative relief, but such dismissal shall not prejudice the right of the intervenor or defendant to further proceed. We are unable to agree with the contention of the defendants Blacks that the prayer in their amended answer praying for an allowance of attorney fees is a prayer for affirmative relief so as to preserve such as an “issue” even after the issue of allowance, or disallowance, of a lien foreclosure was removed from the cause by a dismissal by the plaintiff. We do not believe the legislature, in enacting the cited statute, had that intent. The only prayer for relief, other than for the allowance of an attorney fee, was that the plaintiff’s prayer for foreclosure of the lien be denied. See Allied Paint Mfg. Co. v. Banes, 208 Okl. 119, 253 P.2d 826, and Goins v. Fox, Okl., 332 P.2d 220.
The defendants Blacks’ theory, that upon the filing of the dismissal they became the “prevailing parties” as against, the plaintiff and entitled to an allowance of [302] attorney fees, is, we believe, contrary to the clearly expressed meaning of 42 O.S. 1961, § 176, which is as follows:
“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.” (Emphasis supplied.)
In the Keaton case, supra, cited by defendants ' Blacks, the constitutionality of what is now 42 O.S.1961, § 176 was attacked. This court held, among other things, that the statute allowing the recovery of attorney fees in lien foreclosure actions was constitutional. The facts in that case were that the plaintiff and defendant entered into a contract by the terms of which plaintiff agreed to furnish the labor and material to erect an oil derrick upon the defendant’s property. At the trial plaintiff recovered judgment for the full amount sued for; $100.00 attorney fees, and for foreclosure of the lien on the property. This court, in discussing the validity of the cited statute, said that the statute allowed a “reasonable attorney fee to the prevailing party in lien foreclosure cases." We believe that the use of the words “prevailing party” by this court in that case meant merely the one for whom judgment is rendered, meaning, of course, a judgment upon the validity or invalidity of the lien. In the present case no judgment was entered for or against anyone adjudging that the plaintiff did or did not have a valid lien against the property of the defendants Blacks. The issue of the validity of the lien was removed from this lawsuit by the filing of a voluntary dismissal by the plaintiff. In the Keaton case, however, judgment was rendered for the plaintiff, and under the statute the plaintiff became entitled to recover an attorney fee. The Keaton case, in our opinion, is not in point with the facts in the case before the court.
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LAVENDER, Justice:
This was an action in the District Court of Washita County, Oklahoma brought by Swan-Sigler, Inc., a corporation, hereinafter called plaintiff, against Garland Black and Verna Black, husband and wife, hereinafter called defendants Blacks. The [301] action also was against one Stephens, an electrical contractor, who is not a party to this appeal. The plaintiff prayed for money judgment against Stephens and for foreclosure of a materialman’s lien against the real property upon which the improvement was made and which was owned by the defendants Blacks. The cause proceeded through the pleading stage with the filing •of an amended answer by the defendants Blacks in which they alleged payment in full and other defenses and prayed that the plaintiff take nothing and that these defendants be allowed an attorney fee of .$175.00, together with all other proper, legal .and equitable relief.
After the case was at issue as between the plaintiff and the defendants Blacks (the defendant Stephens having made no .appearance), the trial court awarded a default judgment against Stephens, and the plaintiff filed a voluntary dismissal of its petition as against the defendants Blacks. Thereafter the trial court entered a judgment for the defendants Blacks and against the plaintiff for an allowance of $150.00 attorney fee to be taxed as costs in the action. It is from this judgment of the trial court allowing the recovery of attorney fee that plaintiff brings this appeal.
Plaintiff presents one proposition as grounds for the reversal of the judgment of the trial court. This proposition is: “In an action brought to foreclose a material-man’s lien, an attorney’s fee may only be allowed to a party for whom judgment is rendered.” The defendants Blacks in response thereto argue that plaintiff’s right to •dismiss its action was not unqualified, suggesting that to allow the plaintiff to dismiss under these circumstances so as to defeat the defendants Blacks’ claim for an attorney fee would be prejudicial to these defendants, and further suggesting that here these defendants in their Amended Answer had prayed for “affirmative relief” when they “affirmatively asked the court to award the defendants attorney fees.” The defendants seem to take the further position that they became the “prevailing parties” in the lien foreclosure action as between them and the plaintiff when the latter filed its dismissal, and that as such they became entitled to an allowance of attorney fees, citing in support of this theory Keaton et al. v. Branch, 104 Okl. 287, 231 P. 289.
Considering first the right of the plaintiff in this cause to dismiss its petition against the defendants Blacks prior to final submission to the court or jury, we note that the legislature felt that this right of a plaintiff was important enough to call for a specific provision in the statutes. 12 O.S.1961, § 684 provides in part:
“A plaintiff may, on the payment of costs and without an order of court, dismiss any civil action brought by him at any time before a petition of intervention or answer praying for affirmative relief against him is filed in the action. * * * »
The statute goes on to provide that the plaintiff may even dismiss after the filing of a petition of intervention or answer praying for affirmative relief, but such dismissal shall not prejudice the right of the intervenor or defendant to further proceed. We are unable to agree with the contention of the defendants Blacks that the prayer in their amended answer praying for an allowance of attorney fees is a prayer for affirmative relief so as to preserve such as an “issue” even after the issue of allowance, or disallowance, of a lien foreclosure was removed from the cause by a dismissal by the plaintiff. We do not believe the legislature, in enacting the cited statute, had that intent. The only prayer for relief, other than for the allowance of an attorney fee, was that the plaintiff’s prayer for foreclosure of the lien be denied. See Allied Paint Mfg. Co. v. Banes, 208 Okl. 119, 253 P.2d 826, and Goins v. Fox, Okl., 332 P.2d 220.
The defendants Blacks’ theory, that upon the filing of the dismissal they became the “prevailing parties” as against, the plaintiff and entitled to an allowance of [302] attorney fees, is, we believe, contrary to the clearly expressed meaning of 42 O.S. 1961, § 176, which is as follows:
“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.” (Emphasis supplied.)
In the Keaton case, supra, cited by defendants ' Blacks, the constitutionality of what is now 42 O.S.1961, § 176 was attacked. This court held, among other things, that the statute allowing the recovery of attorney fees in lien foreclosure actions was constitutional. The facts in that case were that the plaintiff and defendant entered into a contract by the terms of which plaintiff agreed to furnish the labor and material to erect an oil derrick upon the defendant’s property. At the trial plaintiff recovered judgment for the full amount sued for; $100.00 attorney fees, and for foreclosure of the lien on the property. This court, in discussing the validity of the cited statute, said that the statute allowed a “reasonable attorney fee to the prevailing party in lien foreclosure cases." We believe that the use of the words “prevailing party” by this court in that case meant merely the one for whom judgment is rendered, meaning, of course, a judgment upon the validity or invalidity of the lien. In the present case no judgment was entered for or against anyone adjudging that the plaintiff did or did not have a valid lien against the property of the defendants Blacks. The issue of the validity of the lien was removed from this lawsuit by the filing of a voluntary dismissal by the plaintiff. In the Keaton case, however, judgment was rendered for the plaintiff, and under the statute the plaintiff became entitled to recover an attorney fee. The Keaton case, in our opinion, is not in point with the facts in the case before the court.
In Miller v. Liberty National Bank and Trust Co. of Oklahoma City, Okl., 391 P.2d 269, plaintiff bank brought an action against the maker of a note and real estate mortgage and the mortgagees who had assigned the note and mortgage to the bank as collateral for a loan to the mortgagees. The bank asked for judgment against the mortgagor for the unpaid balance of the note and for foreclosure of the mortgage and asked for judgment against the mortgagees that the bank was the owner of the note and mortgage. After the mortgagor had filed an answer alleging that all payments on the note had been made as required and that there was no default and the mortgage was not subject to foreclosure, and praying for an attorney’s fee, the bank, in effect, dismissed its action for enforcement of the mortgage lien by amending its petition so as to withdraw all allegations concerning default and foreclosure of the mortgage and leave only its allegations as to title to the note and mortgage, and prayed only for judgment establishing its title to the note and mortgage as against the mortgagees. Mortgagor, who also had prayed the court to determine ownership of the note and mortgage so that she would know whom to pay in the future, moved to strike the amended petition on the ground of departure from the original petition, in that it was designed only to defeat her right to an attorney’s fee, but still insisted on a determination of the ownership of the note and mortgage. This motion was overruled, and after trial of the remaining issue the trial court decreed that the bank was the owner of the note and mortgage and directed the mortgagor to make all future payments to the bank. Although finding, in its journal entry of judgment, that the mortgagor had done all things required of her and made all payments as required, the trial court denied her prayer for an attorney’s fee. On appeal by the mortgagor-defendant, the court held that the plaintiff was entitled to amend its petition when it did, and that by such amendment the matter of enforcement of the mortgage lien by foreclosure was removed from the action as an issue. On the matter of the attor[303] ney’s fee, the court held in the third paragraph of its syllabus that:
“Title 42 O.S.1961, Sec. 176, 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.’ Thereunder no attorney’s fee may be allowed the attorney for the defendant unless the final judgment be against the lien claim.”
The cases of Oklahoma Farm Mortgage Co. v. Cesar, 178 Okl. 451, 62 P.2d 1269, and Pierson v. American National Bank of Shawnee, Okl., 325 P.2d 426, 428, were also cited by the court in the Miller case in support of the above statement.
This court also held in the Miller case, supra, in the second paragraph of the syllabus by the court:
“The right to recover attorney’s fees from one’s opponent in litigation as a part of the costs thereof does not exist at common law. Such allowances in the absence of statute or some agreement expressly authorizing the same, cannot be sustained.”
Judgment of the trial court allowing $150.00 attorney fees in favor of defendants Garland Black and Verna Black reversed and cause remanded with directions to the trial court to vacate said portion of its judgment.
JACKSON, V. C. J., and DAVISON, WILLIAMS, IRWIN and BERRY, JJ., concur.
HALLEY, C. J., dissents.