Cook v. Washington-Oregon Corp.

• Decision Date: 08 February 1915
• Docket Number: 12208.
• Citation: 84 Wash. 68,146 P. 156
• Court: Washington Supreme Court
• Parties: COOK et al. v. WASHINGTON-OREGON CORPORATION et al.

146 P. 156

84 Wash. 68

COOK et al. v. WASHINGTON-OREGON CORPORATION et al.

No. 12208.

Supreme Court of Washington

February 8, 1915

Department 1. Appeal from Superior Court, Lewis County; A. E. Rice Judge.

Action by C. E. Cook and others against George W. Snyder and the Washington-Oregon Corporation. Decree for plaintiffs, and the corporation defendant appeals. Modified and affirmed.

Forney & Ponder, of Chehalis, and Chas. A. Johns of Portland, Or., for appellant.

Albers & Allen, of Chehalis, for respondents.

HOLCOMB J.

This is an action brought to foreclose certain labor liens on the mining machinery, equipment, and material used in and about the operation of a certain coal mine, which was leased by appellant, Washington-Oregon Corporation, to the defendant Snyder, on November 12, 1912. The liens are claimed and filed and this action brought under section 1149, Rem. & Bal. Code which is as follows:

'Every person performing labor for any person, company or corporation, in the operation of any railway, canal or transportation company, or any water, mining or manufacturing company, sawmill, lumber or timber company, shall have a prior lien on the franchise, earnings, and on all the real and personal property of said person, company or corporation which is used in the operation of its business, to the extent of the moneys due him from such person, company or corporation, operating said franchise or business, for labor performed within six months next preceding the filing of his claim therefor, as hereinafter provided; and no mortgage, deed of trust or conveyance shall defeat or take precedence over said lien.'

The lease to Snyder also contained a conditional right to purchase the mining machinery, equipment, and material used in and about the operation of said mine from the appellant. Under said lease and conditional sale contract Snyder took possession of said mine and machinery and equipment, and proceeded to operate the mine until about April 4, 1913. The lease and conditional sale contract was filed in the office of the county auditor of Lewis county January 28, 1913, more than ten days after its execution. During the time Snyder was operating the mine he became indebted to the plaintiffs herein and other laborers, who assigned their claims to plaintiffs (respondents) before the commencement of the action, for labor performed in the operation of the mine in the sum of $1,527.14, as found by the court. Defendant Snyder abandoned the mine on April 4, 1913, failed to pay the laborers, and left the state, and appellant re-entered and took possession of the mine and equipment as of its former estate.

No statement of facts was filed within the statutory time, and the questions presented must be governed by the pleadings, findings of fact, conclusions of law, and judgment of the trial court.

Appellant urges upon appeal that the record does not show that any copy of the lien notice was served upon appellant, or upon the defendant Snyder. The record before us is silent as to that requirement of the lien statute governing this case (section 1150, Rem. & Bal. Code). The objection, however, comes too late. It was urged for the first time, so far as we can determine, at the time of the hearing of the case on appeal in this court. The complaint alleged the service of a copy of the lien notice upon appellant, and was silent as to service of any copy of the lien notice upon defendant Snyder. It is true appellant demurred to the complaint, and the demurrer was overruled. After trial in the court below both respondent and appellant proposed findings of fact and conclusions of law. The court adopted findings and conclusions in respondents' favor. The findings proposed by both parties were silent on the matter of the service of copy of lien notice upon either party. Waiving the question of whether or not appellant could take advantage of the failure of the lienors to serve the statutory copy of notice of lien upon the 'employer,' it is manifest that appellant did not urge the point in the court below. Appellant's opening brief on appeal does not raise the question. Fairness to the adverse party and to the trial court forbids any such dilatory practice. Had the point been urged to the court below, that court could, and doubtless would, have determined the matter properly. If the defect respecting defendant Snyder was jurisdictional as to the entire proceeding, it was such a matter as was amendable, if the facts so warranted, to show proper service of copy of lien notice. We have repeatedly held that:

'Where a case has proceeded to judgment, we will not consider any defect in the pleadings that might have been cured by amendment, but will, as admonished by Rem. & Bal. Code, § 1752, decide the case on the merits, disregarding all technicalities, and consider all amendments which could have been made as made.' Yeisley v. Smith, 144 P. 918; Kelly v. Lum, 75 Wash. 135, 134 P. 819, 49 L. R. A. (N. S.) 1151.

No findings of fact are necessary in an equity case. Potwin v. Blasher, 9 Wash. 460, 37 P. 710; White Crest Canning Co. v. Sims, 30 Wash. 374, 70 P. 1003.

Since no statement of facts is brought to us on appeal, the correctness of the judgment, at least so far as the facts are concerned, will be presumed, in the absence of any affirmative showing in the record of prejudicial error. Slyfield v. Willard, 43 Wash. 179, 86 P. 392; Gould v. Austin, 52 Wash. 457, 100 P. 1029; Clambey v. Copland, 52 Wash. 580, 100 P. 1031.

Incomplete or defective findings are not ground for reversal in an equity case, since no findings are necessary to support the decree. Clambey v. Copland, supra.

Under the law applicable to this case, however, the judgment cannot be sustained entirely, unless the property subject to the lien is real or personal property of Snyder the employer. If real property, except as to the leasehold term, it belongs to appellant, for title to it never...