City Sash & Door Co. v. Bunn

• Decision Date: 19 April 1916
• Docket Number: 13062.
• Citation: 90 Wash. 669,156 P. 854
• Court: Washington Supreme Court
• Parties: CITY SASH & DOOR CO. et al. v. BUNN et al.

156 P. 854

90 Wash. 669

CITY SASH & DOOR CO. et al. v. BUNN et al.

No. 13062.

Supreme Court of Washington

April 19, 1916

Department 1. Appeal from Superior Court, King County; John S. Jurey Judge.

Proceedings by the City Sash & Door Company and others against Joseph A McGinty and wife, to foreclose mechanics' liens, in which Margaret Bunn and others intervened, the proceedings being consolidated. From a judgment foreclosing the liens, the interveners appeal. Reversed and remanded, with directions.

George L. Palmer, of Spokane, and Beecheler & Batchelor, of Seattle for appellants.

Jas. A. Dougan, of Seattle, for respondents.

ELLIS J.

Action to foreclose a large number of mechanics' liens on lot 7 in block 42 of T. Hanford's addition to Seattle. The case is here upon the transcript, findings, conclusions, and decree which are so voluminous as to prohibit a statement of more than a bare outline. At the time the work was done, materials furnished and liens filed, covering the period from August 29, 1913, to February 10, 1914, Joseph A. McGinty and wife were the owners of the property. The work was done and the materials furnished at their instance for the construction of two houses, one on the north half, the other on the south half of the lot. On September 30, 1914, McGinty and wife conveyed the south half of the lot to Margaret Bunn and husband, and in October, 1914, the north half to Louis Bernheim. Originally four actions were instituted, numbered and entitled on the records of the superior court for King county as follows: Cause No. 97635, Recchio v. McGinty et al., to foreclose a lien on all of lot 7. In this case cross-complaints in intervention were filed by Charles Denny and S.W. R. Dally. Cause No. 99669, Hanson v. McGinty et al., to foreclose a lien which also covered all of lot 7. Cause No. 99054, City Sash & Door Company v. McGinty et al., to foreclose a lien upon the north half of lot 7. In this case a complaint in intervention was filed by Bass-Heuter Paint Company to foreclose a claim of lien on the entire lot. Cause No. 99056, City Sash & Door Company v. McGinty et al., to foreclose a claim of lien on the south half of lot 7. Four cross-complaints in intervention to foreclose claims of lien were filed in this case, one by D. J. McHugh covering the south half of lot 7; the second by Taylor Mill Company, originally covering the north half of lot 7, but amended at the trial to cover the south half of the lot; the third by Arrow Electric Company, covering the entire lot; the fourth by Bass-Heuter Paint Company, covering the entire lot. The court made specific findings as to the time and character of service and persons served with summons, complaint and cross-complaints in each case and a general finding that no process of any kind or nature was served upon McGinty and wife other than as in the special findings stated. On December 22, 1914, after all the services that were ever made had been either made personally or commenced by publication, the four cases were consolidated pursuant to stipulation signed by the attorneys for the various plaintiffs and interveners. On February 18, 1915, Margaret Bunn and husband and Louis Bernheim appeared specially, and moved to dismiss the several causes of action on the ground that they were then the owners of lot 7, had never been served with summons in any of the actions except on the cross-complaint of Arrow Electric Company, and that none of the actions, either by complaint or cross-complaint, had been commenced within eight months after the filing of the respective claims of lien. The motion was denied and Bernheim and the Bunns were made additional parties defendant to all of the complaints and complaints in intervention over their objections. This was long after the expiration of eight months from the filing of any of the lien claims. Thereupon the Bunns and Bernheim filed separate answers, setting up substantially the same facts as advanced on their motions. After trial the court made findings of fact and conclusions of law, and thereon entered personal judgments against McGinty and wife for the amounts found due to each of the respective lien claimants and a decree establishing as valid all of the liens claimed and ordered sale of the two half lots and the buildings thereon to satisfy the liens so established against each half respectively, surplus, if any, of the proceeds of the north to be paid to Bernheim and of the south half to the Bunns. The defendants Margaret Bunn and husband and Louis Bernheim appeal.

No brief has been filed by any respondent in defense of the decree on the merits. Respondents, City Sash & Door Company and Taylor Mill Company, on the hearing in this court filed identical motions to strike the transcript and dismiss the appeal on the ground that no statement of facts has been brought up and no exceptions were taken to the court's findings. There is no merit in the motions. Moreover, they were presented on only 3 days' notice. Our rules require 10 days' notice. 1 Rem. & Bal. Code, § 1733, Supreme Court rules 18 and 19 (132 P. xiii, xiv).

No exceptions were taken to the findings. Appellants concede that they are sumclent to sustain the judgments and decree in favor of Recchio, Denny, Dally, and Arrow Electric Company, but insist that they are wholly insufficient to sustain any decree establishing liens in favor of the respondents Hanson, City Sash & Door Company, Bass-Heuter Paint Company, McHugh, and Taylor Mill Company, in that they affirmatively show that no service of process conferring jurisdiction as to any of these was made upon the owner of the premises within the life of any of their liens. The special statute, limiting the life of mechanics' liens, Rem. & Bal. Code, § 1138 (Laws 1893, p. 35, § 9), declares:

'No lien created by this chapter binds the property subject to the lien for a longer period than eight calendar months after the claim has been filed unless an action be commenced in the proper court within that time to enforce such lien. * * *'

This is not a statute of limitations. It 'limits the duration of the lien.' Peterson v. Dillon, 27 Wash. 78, 67 P. 397; Davis v. Bartz, 65 Wash. 395, 118 P. 334. The general statute governing the commencement of actions passed at the same session of the Legislature (Laws 1893, p. 407, § 1) declared:

'Civil actions in the several superior courts of this state shall be commenced by the service of a summons, as hereinafter provided.'

The last-quoted section was amended in 1895 (Laws 1895, p. 170, § 1; Rem. & Bal. Code, § 220) to read as follows:

'Civil actions in the several superior courts of this state shall be commenced by the service of a summons, as hereinafter provided, or by filing a complaint with the county clerk as clerk of the court: Provided, that unless service has been had on the defendant prior to the filing of the complaint, the plaintiff shall cause one or more of the defendants to be served personally, or commence service by publication within ninety days from the date of filing the complaint.'

Unless the special statute (section 1138) was by implication also amended by the amendment of the general statute governing commencement of actions, thus extending the life of the lien merely by filing a complaint, it is plain that the lien is lost as to any necessary defendant who is not served with summons within the eight months.

The owner of property subject to a mechanic's lien at the time of suit is a necessary party to an action to foreclose the lien. The proceeding to establish and foreclose the lien is in a sense in rem. Jurisdiction of the subject-matter can only be acquired by service, actual or constructive, upon the owner of the interest sought to be subjected and within the statutory life of the lien. Littell & Smythe Mfg. Co....