Curtis Lumber Co. v. Sortor

• Decision Date: 04 October 1973
• Docket Number: No. 878--II,878--II
• Citation: 9 Wn.App. 762,515 P.2d 554
• Parties: CURTIS LUMBER COMPANY, a corporation, Appellant, v. Garold S. SORTOR et al., Respondents.
• Court: Washington Court of Appeals

Page 762

9 Wn.App. 762

515 P.2d 554

CURTIS LUMBER COMPANY, a corporation, Appellant, v. Garold S. SORTOR et al., Respondents.

No. 878--II.

Court of Appeals of Washington, Division 2.

Oct. 4, 1973.

Review Granted Dec. 17, 1973.

Ernest L. Meyer, O'Leary, Meyer & O'Leary, Olympia, for appellant.

Richard E. Keefe and Charles P. Nomellini, Ashley, Foster, Pepper & Riviera, Seattle, for respondents.

PEARSON, Chief Judge.

This appeal raises a single question: Does a lien asserted under RCW 60.04.100 expire, where service of the summons and complaint to foreclose it is not made on a necessary party within 8 months of the date when notice of claim of lien is filed? We hold that the lien does expire.

The facts are undisputed. Appellant, Curtis Lumber Company, delivered material to a construction site on certain property near Lacey, Washington in May, 1971. Washington Mutual Savings Bank recorded a mortgage on that property on June 22, 1971. On August 26, 1971, Curtis filed a notice of claim of lien against the property and on April 26, 1972, exactly 8 months later, Curtis filed a complaint to foreclose its lien. The bank was served with a copy of the summons and complaint 2 days later.

The bank's answer sought foreclosure of its mortgage and alleged Curtis's failure to timely commence an action on its lien as a bar thereto. The bank's motion for summary judgment of foreclosure and dismissing Curtis's action was granted. From that judgment Curtis appeals.

RCW 60.04 et seq. contains the statutory provisions pertaining to mechanics' liens. RCW 60.04.100 provides as follows 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; or, if credit be given and the terms thereof be stated in the claim of lien, then eight calendar months after the expiration of such credit; and in case such action be not prosecuted to judgment within two years after the commencement thereof, the court, in its discretion, may dismiss the same for want of prosecution, and the dismissal of such action or a judgment rendered therein, that no lien exists, shall constitute a cancellation of the lien.

With regard to the commencement of an action under this statute, the facts of this case fall squarely within the rule laid down in City Sash & Door Co. v. Bunn, 90 Wash. 669, 156 P. 854 (1916). As said in that case:

When it is remembered that § 1138 (present RCW 60.04.100) is not a mere statute of limitations, limiting the time of commencing actions, but fixes a limit to the very existence of the lien, it is palpable that no action to foreclose a mechanics' lien can be deemed commenced until the Necessary parties to its maintenance have been served either personally or by publication of summons. It would seem, also, that this must be done within the eight months of the statutory life of the lien, because jurisdiction of such parties, under the foregoing decisions, is an essential to any action 'to enforce such lien' which is the kind of action which must be Commenced within that time under the terms of the statute. The life of the lien, as fixed by the special statute on that subject, cannot be held to be extended for ninety days merely by the filing of a complaint within the eight months, though followed by service after the eight months, but within ninety days, as required by the general statute as to commencement of actions subsequently passed. No such implication is necessary, since the filing of the complaint and the service or publication of summons thereafter at any time within ninety days may both be accomplished within the eight months of the life of the lien, thus giving scope for the...