Curtis Lumber Co. v. Sortor
| Decision Date | 29 May 1974 |
| Docket Number | No. 43039,43039 |
| Citation | 83 Wn.2d 764,522 P.2d 822 |
| Parties | CURTIS LUMBER CO., a corporation, Petitioner, v. Garold S. SORTOR et al., Respondents. |
| Court | Washington Supreme Court |
O'Leary, Meyer & O'Leary, Ernest L. Meyer, Olympia, for petitioner.
Ashley, Foster, Pepper & Riviera, Richard E. Keefe, Charles P. Nomellini, Seattle, for respondents.
This case is before us on a petition by Curtis Lumber Co. to review a decision of the Court of Appeals which affirmed summary judgment and dismissal of a lien foreclosure sought by appellant Curtis Lumber Co. against respondents Sortor, et al., in the Thurston County Superior Court.
The facts are not in dispute. In May, 1971, Curtis Lumber Co. (hereinafter 'Curtis') delivered building materials to a construction site near Lacey, Washington. Respondent Washington Mutual Savings Bank recorded its mortgage on the property on June 22, 1971. Curtis filed its notice of lien on August 26, 1971, and exactly 8 months thereafter, on April 26, 1972, filed a complaint to foreclose that lien. Respondent bank was subsequently served with a copy of the summons and complaint on April 28, 1972. In answer, the bank moved for summary judgment alleging that Curtis had failed to timely commence its action, and its lien was barred, citing City Sash & Door Co. v. Bunn, 90 Wash. 669, 156 P. 854 (1916). Whereupon, the trial court granted the motion for summary judgment which was affirmed by the Court of Appeals in Curtis Lumber Co. v. Sortor, 9 Wash.App. 762, 515 P.2d 554 (1973).
RCW 60.04.100, which governs the expiration of mechanic's liens, provides in pertinent part:
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; . . .
(Italics ours).
The sole issue is whether a mechanic's lien asserted under RCW 60.04.100 expires when a complaint is timely filed but service of summons upon necessary parties is not made within 8 months of the filing of the claim of lien. The Court of Appeals relied upon the 1916 decision in City Sash & Door Co. v. Bunn, Supra, which held that he statute antedating RCW 60.04.100 limited the life of a mechanic's lien to 8 months unless service was made upon all necessary parties. When the statutory antecedent of RCW 60.04.100 was enacted in 1893, actions were commenced by the service of a summons. Laws of 1893, ch. 127, § 1, p. 407. Shortly thereafter, Laws of 1895, ch. 86, § 1, p. 170 (), was enacted to provide for the commencement of actions by the service of a summons Or the filing of a complaint. Nevertheless, in City Sash & Door Co., the court reasoned that commencement of an action for purposes of a mechanic's lien was not modified by the revision in the general statute governing commencement of actions. Thus, the court held that necessary parties must be served prior to the expiration of the 8-month period to validly commence an action to foreclose on a mechanic's lien.
In 1967, this court completely revised the Washington rules of civil procedure. The goal, as stated at the time, was '(t)o eliminate many procedural traps now existing in Washington practice;' Foreword to Civil Rules for Superior Court, 71 Wash.2d xxiii, xxiv (1967). The instant case provides a prime example of an anomalous, purely accidental, unnecessary but fatal procedural snare for the unwary or less fleet of foot. The new rules should serve as a manual or Bible of civil procedure. Hopefully, careful adherence to the rules of the manual will avoid embarrassment to members of the bar because of delay and even the loss of lawsuits occasioned by unnecessarily complex and vagrant procedural technicalities. In other words, the basic purpose of the new rules of civil procedure is to eliminate or at least ot minimize technical miscarriages of justice inherent in archaic procedural concepts once characterized by Vanderbilt as 'the sporting theory of justice'.
Whatever purpose it was thought was served by the interpretation rendered in City Sash & Door Co. in 1916 certainly seems no longer particularly pertinent in today's era of modern, streamlined rules of civil procedure. CR 81, adopted in 1967, is addressed to the scope of the modern rules:
Applicability in General
(a) To What Proceedings Applicable. Except where inconsistent with rules or statutes applicable to special proceedings (which are governed by SPR 90.04W--98.20W), These rules shall govern all civil proceedings. Where statutes relating to special proceedings provide for procedure under former statutes applicable generally to civil actions, the procedure shall be governed by these rules.
(b) Conflicting Statutes and Rules. Subject to the provisions of subdivision (a) of this rule, these rules supersede all procedural statutes and other rules that may be in conflict. (Adopted May 5, 1967, effective July 1, 1967.)
(Italics ours.)
There seems to us no question that the rule pronounced in the City Sash & Door Co. case was displaced and rendered inoperative by the adoption of the new rules of civil procedure. Cf. Galvanizer's Co. v. State Highway Comm'n, 8 Wash.App. 804, 509 P.2d 73 (1973). CR 3 clearly and unmistakably provides that an action is commenced today by service of a summons Or by the filing of a complaint.
We must conclude, therefore, that RCW 60.04.100 is a statute of limitations upon the duration of a mechanic's lien. According to the statutory language of RCW 60.04.100 the lien expires eight months after filing of claim of lien unless an action to foreclose is commenced. An action is properly commenced under CR 3 by the filing of a complaint or the service of summons. In the instant case, Curtis filed its complaint upon the final day of the eight-month period. Hence under RCW 4.16.170, the statute of limitations is tolled by the filing of a complaint, and, thus, Curtis's action was timely commenced.
The Court of Appeals and the Superior Court are reversed, and the case is remanded for further proceedings.
The majority has reversed a precedent of 57 years by overruling the case of City Sash & Door Co. v. Bunn, 90 Wash. 669, 156 P. 854 (1916). The rationale for the reversal is based on Civil Rule for Superior Court 3. CR 3, for all practical purposes, is the same as the rule for commencement of civil action which was in existence at the time that City Sash & Door Co. v. Bunn, Supra, was decided.
The comment to CR 3 states that '(s)ubdivision (a) follows and supersedes RCW 4.28.010 except for the addition of the last two sentences,' which are not material to this discussion.
RCW 4.28.010 is stated 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 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: . . .
The determinative statutes and rules are the same today as those considered by the court in City Sash & Door Co. v. Bunn, Supra, when it was decided that the commencement of a lien foreclosure action under RCW 60.04 required Both filing And service of summons and complaint within the statutory 8-month period.
In the record and in oral argument, the respondent has forthrightly stated that he has not been misled or entrapped by CR 3, but that the delay in serving and filing the necessary party within the 8-month period was occasioned by the respondent's failure in deciding at the very last minute to file and commence a suit to foreclose the lien. There was no reliance of the respondent upon CR 3. As a matter of fact, if the respondent had decided to process his lien for suit in sufficient time, the procedure as outlined in City Sash & Door Co. v. Bunn, Supra, had to be followed. 1
The majority ignores and fails to apply CR 81(a) which provides that the general rules shall not be applied if they are inconsistent with a special proceeding.
Mechanics' liens have always been considered a special proceeding. If you consult the Index to the RCW's under 'SPECIAL PROCEEDINGS,' you will find listed 'Liens, see LIENS.' 2 RCW General Index 1501 (1973). The lien statute was not known to the common law and is a creature of statute. A claimant, under the statute, must file a claim for a lien within 90 days of completion of work or delivery of materials with the county auditor. It is considered an action in rem, taking some of the nature of in personam.
In applying the lien statute the court must take the statute as it finds it and cannot depart from the plain words of the statute. A cardinal rule of lien construction is that when a court has construed a statute in a particular way for a long period of time, it must follow such a decision; and when it effects a change in the meaning of the statute, it in effect engages in legislation. Rupp v. Earl H. Cline & Sons, Inc., 230 Md. 573, 188 A.2d 146, 1 A.L.R.3d 815 (1963).
The majority's ruling, which overturns 57 years of precedent, in effect has now amended RCW 60.04.100 to mean that the lien statute survives for more than 8 calendar months, in contradiction to that statute. In City Sash & Door Co. v. Bunn, Supra 90 Wash. at 673--675, 156 P. at 856, we said:
The special statute limiting the life of mechanics' liens . . . (RCW 60.04.100), 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...
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