Carstens & Earles, Inc. v. City of Seattle

• Decision Date: 11 February 1915
• Docket Number: 12202.
• Citation: 146 P. 381,84 Wash. 88
• Court: Washington Supreme Court
• Parties: CARSTENS & EARLES, Inc., v. CITY OF SEATTLE et al.

146 P. 381

84 Wash. 88

CARSTENS & EARLES, Inc., v. CITY OF SEATTLE et al.

No. 12202.

Supreme Court of Washington

February 11, 1915

Department 1. Appeal from Superior Court, King County; J. T. Ronald Judge.

Action by Carstens & Earles, Incorporated, against the City of Seattle, J. B. Coughlin, and others, to foreclose a mortgage. From a judgment directing a foreclosure of the mortgage as a lien superior to an assessment lien claimed by the defendant Coughlin, the defendant City of Seattle and J. B. Coughlin appeal. Appeal by the city dismissed, and judgment reversed and cause remanded, with directions to correct the decree, so as to preserve the rights of defendant Coughlin under his local assessment lien as superior to the mortgage lien.

Jas. E Bradford, C. B. White, and John T. Casey, all of Seattle, for appellants.

Preston & Thorgrimson and R. H. Coshun, all of Seattle, for respondent.

PARKER J.

The plaintiff commenced this action in the superior court for King county to foreclose a mortgage on land in the city of Seattle, executed by the defendants to John G. Smith and wife. The city of Seattle was made a defendant because it claimed a local assessment lien upon the land. J. B. Coughlin was made a defendant because he claimed to be the owner of another local assessment lien by purchase of a delinquent certificate therefor from the city of Seattle. The trial resulted in a decree of foreclosure decreeing the lien of the plaintiff's mortgage to be superior to the assessment lien claimed by the defendant Coughlin, but inferior to the assessment lien claimed by the city, and sale of the land was ordered in satisfaction of the plaintiff's mortgage lien, subject only to the assessment lien of the city. The city of Seattle and J. B. Coughlin are prosecuting separate appeals from this disposition of the cause.

The facts necessary for us to notice are not in dispute and may be briefly stated as follows: The mortgage here involved was duly executed on December 29, 1908. The assessment lien of the city is for the cost of the construction of a local sewer improvement. The superiority of this lien over respondent's mortgage was conceded and decreed accordingly, upon the trial, so of course the city was successful and had no occasion to appeal, so far as the claim of superiority of that lien is concerned. On August 17, 1912, there was duly rendered, by the superior court for King county, a judgment confirming a local assessment levied upon the land for the sum of $1,727, in eminent domin and local assessment proceedings prosecuted by the city of Seattle for the widening of Eighteenth street, in pursuance of the statute relating to the power of eminent domain by cities and the charging by local assessment of the awards and costs thereof against property benefited thereby. Rem. & Bal. Code, § 7767, and following. Thereafter, on January 3, 1913, appellant Coughlin became the owner of the lien of this assessment upon the land, by purchase of a delinquent certificate therefor from the city at a sale duly had in pursuance of section 7802, Rem. & Bal. Code, relating to the enforcement of the lien of such assessments. The regularity and validity of these eminent domain and assessment proceedings, and of the sale by which appellant Coughlin became the owner of the lien of the assessment, is not questioned here. Thereafter, on February 11, 1914, this action was commenced by respondent seeking foreclosure of its mortgage lien. The decree of foreclosure was rendered on June 20, 1914. Thereafter, on July 16, 1914, counsel for the city caused to be served and filed its notice of appeal from the decree to this court. On July 17, 1914, counsel for defendant J. B. Coughlin caused to be served and filed his notice of appeal from the decree to this court. Counsel for defendant Coughlin, however, did not perfect this appeal by filing an appeal bond within the time prescribed by law. Thereafter, on September 10, 1914, counsel for defendant Coughlin caused to be served and filed a new notice of appeal, which was followed by due execution and filing of an appeal bond on the same day. This, it will be noticed, occurred within 90 days following the rendering of the decree, but not within 10 days following the service and filing of the city's notice of appeal.

Counsel for respondent moved to dismiss the city's appeal upon the ground that the city has no appealable interest in this controversy. Counsel for the city does not claim any further interest in the controversy than an interest in the abstract question of whether a special eminent domain assessment to pay the expense of condemnation, such as this, is in law a lien superior to the lien of a prior mortgage upon the land so assessed. We have noticed that the city's local assessment lien was upon the trial conceded and decreed to be superior to respondent's mortgage lien, and that that was the only lien then claimed by the city upon the land. True, it acquired the lien of the special eminent domain assessment in the first instance, but it transferred that lien to appellant Coughlin by sale of a certificate of delinquency therefor long before the commencement of this action to foreclose respondent's mortgage lien. It is not claimed that the city has any interest in this controversy by virtue of any covenant of warranty on its part accompanying its sale of this lien to appellant Coughlin, nor that it would suffer in the least by this court holding with the superior court that respondent's mortgage is superior to that lien, other than that thereby there would be established a principle of law touching the superiority of prior mortgage liens over eminent domain assessment liens, contrary to what counsel for the city conceive to be the city's interest, not in this particular case, but speaking generally. To recognize the city's claimed right to be heard here as a party to this controversy would compel us to recognize the right of any one claiming an interest in the establishing of some abstract principle of law to be heard in any cause involving such questions of law. The fact that there was, at the beginning of this action in the superior court, apparently some controversy between respondent and the city of Seattle, as to the superiority of their respective liens, does not change the fact that the question of the superiority of appellant Coughlin's eminent domain assessment lien over respondent's mortgage lien is only a moot question of law, so far as the city's rights are here concerned. This precludes the city from further participation as a party in this controversy. There is not, and has not been since the rendering of the decree of foreclosure, any actual controversy between the parties in which the city is interested. Johnson v. Irwin, 16 Wash. 652, 48 P. 345; State ex rel. Campbell v. Sup. Ct., 25 Wash. 271, 65 P. 183; Oudin & Bergman Co. v. Conlan, 34 Wash. 216, 75 P. 798; Wilson v. Fraser, 67 Wash. 347, 121 P. 829; Hillyard v. Board of County Com'rs, 69 Wash. 423, 125 P. 363; 2 Cyc. 533.

We conclude that the city's appeal must be dismissed. It is so ordered. In view of our conclusion upon the merits of the controversy between respondent and appellant Coughlin, the dismissal of the city's appeal is of no consequence to it, other than to preclude it from recovering its costs in this court. We have, however, dealt with the question of the city's right of appeal in this case at some length because of the pertinency of that question to the sufficiency of defendant Coughlin's appeal, which we will now notice.

Counsel for respondent moved to dismiss the appeal of defendant Coughlin on the ground that his appeal was not perfected as required by law. Counsel seem to contend that, upon Coughlin's failure to follow his first notice of appeal with the timely filing of an appeal bond, such failure to perfect that appeal exhausted his right of appeal, regardless of the time prescribed by law for appealing. It has become the settled law of this state that the failure to perfect an attempted appeal or the abandonment of an appeal by a party having the right to appeal does not in the least impair such party's right to give notice of and perect a new independent appeal, providing only that such new appeal is perfected within the time prescribed by law. Rem. & Bal. Code, § 1735; Embree v. McLennan, 18 Wash. 651, 52 P. 241; Sligh v. Shelton Southwestern R. Co., 20 Wash. 16, 54 P. 763; Griffith v. Maxwell, 20 Wash. 403, 55 P. 571; Noble v. Whitten, 34 Wash. 507, 76 P. 95; Tatum v. Geist, 40 Wash. 575, 82 P. 902; State v. Miller, 80 Wash. 487, 141 P. 1139.

The principal contention of counsel for respondent upon their motion to dismiss defendant Coughlin's appeal is that his second notice of appeal and bond filed therewith did not perfect his appeal, although such notice was given and the bond filed within the 90 days prescribed for taking an appeal by Rem. & Bal. Code, § 1718, because that appeal was not perfected within 10 days following the city's notice of appeal, as required by Rem. & Bal. Code, § 1720, which reads as follows:

'All parties, whose interests are similarly affected by any judgment or order appealed from, may join in the notice of appeal, whether it be given at the time when such judgment or order is rendered or made, or subsequently; and any such party, who has not joined in the notice, may, at any time within 10 days after the notice is given or served, serve an independent notice of like appeal, or join in the appeal already taken by filing with the clerk of the superior court a statement that he joins therein or in some part thereof, specifying in what part. Any such party, who does not so join, shall not derive any benefit from the appeal, unless from the necessity of the case; nor

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