Baxter v. Smith

• Decision Date: 01 July 1882
• Citation: 2 Wash.Terr. 97,4 P. 35
• Parties: BAXTER v. SMITH AND OTHERS.
• Court: Washington Supreme Court

4 P. 35

2 Wash.Terr. 97

BAXTER v. SMITH AND OTHERS.

Supreme Court of Territory of Washington

July, 1882

Appeal from a judgment of the district court.

Struve & Haines, for appellant.

G Morris and McNaught, Ferry McNaught & Mitchell, for appellees.

HOYT, J.

A large number of suits were pending in the court below against the firm of Kems Bros., and certain rafts of logs owned by them a part of said logs being marked "K.," and the rest "I. K." All of said suits were consolidated, by consent, and adjudication had established the order in which the claims of the several plaintiffs should attach to the fund in the registry of the court which had been derived from a sale of said logs. Baxter, the appellant herein, claimed by virtue of a chattel mortgage duly executed, and covering that portion of said logs marked "I. K.," and he prosecutes this appeal to reverse that portion of the decree entered below, which postponed his claim to those of Cariel Bush, and Monroe, who claimed as lienors under the lien law of the territory, and Smith, Merwin, and McCabe, who were attaching creditors. It is conceded that, as to the claims of said lienors, the action of the court below was right if the "lien notices," introduced in evidence to support said claims, were sufficient; but it is contended that said notices are void in that there is no sufficient statement of the demand, and of the amount due thereon after deducting set-offs. We have carefully examined said notices, and, as to those of Bush and Monroe, we think that they clearly show when we construe the statement of the demand as a whole, not only what amount is now due, but also the amount of the entire claim before set-offs were deducted, and that, therefore, these two notices are not within the rule established by the case of Wheeler v. Port Blakely Mill Co. 3 P. 635, decided by this court at its last term, and that they are sufficient. As to the notice of Cariel's lien there is greater difficulty; but in view of the fact that this was a lien for timber, and that such a lien attaches upon the identical timber cut, and that, under the contract set out in this notice, the sale of each log of timber can be considered as a separate contract, for which a lien, to the amount to which said log would come at the agreed price per thousand, would attach, we are of the opinion that this notice also was sufficient, and that the action of the court, in giving all...