Davidson v. National Can Co.

• Decision Date: 28 December 1928
• Docket Number: 21352.
• Parties: DAVIDSON v. NATIONAL CAN CO. et al.
• Court: Washington Supreme Court

273 P. 185

150 Wash. 370

DAVIDSON v. NATIONAL CAN CO. et al.

No. 21352.

Supreme Court of Washington

December 28, 1928

Department 1.

Appeal from Superior Court, Pierce County; Ernest M. Card, Judge.

Action by C. F. Davidson, doing business under the firm name and style of the C. F. Davidson Company, against the National Can Company and others. From the judgment, so far as denying a lien, plaintiff appeals, and from the judgment, so far as for plaintiff, the named defendant and others appeal. Defendants' appeal dismissed; reversed and remanded, with instructions on plaintiff's appeal.

Appeal from final judgment not taken in 30 days from judgment entry limited by court rule authorized by statute, must be dismissed. Supreme Court Rule 10; Laws Ex.Sess.1925, p. 187.

William R. Lee, of Tacoma, for appellant.

H. W Lueders and Williamson, Freeman & Broenkow, all of Tacoma for respondents.

TOLMAN J.

Appellant, as plaintiff, brought this action to foreclose a lien for labor and material supplied in the construction of a building upon certain described real estate. After trial upon the merits, the trial court, by its decree, established the prior lien of certain mortgages, allowed liens to certain other claimants who were brought into the action, allowed the plaintiff liens on certain lien claims filed by materialmen and assigned to him, and gave to the plaintiff a judgment in the sum of $7,684.68, with costs covering the labor and material which he put into the building, but denied his right to a lien on that claim. The decree further provided that, in the event that this court shall adjudge that the plaintiff is entitled to a lien upon the claim upon which it allowed judgment only, then and in that event his reasonable attorney's fees are fixed and will be allowed in the sum of $750.

The plaintiff has appealed from that part of the decree which denies him a lien upon his original claim and fails to foreclose it, while the defendant National Can Company, with two individuals joining, has attempted to take an appeal from most of the other features of the decree.

The final judgment was signed and filed on February 24, 1928. The defendants' notice of appeal was served on April 2, 1928, and filed on April 3, 1928. Even treating this notice as an attempt to take an independent appeal, rather than a cross-appeal, still it was not filed in time. Rule X of this court, adopted under the authority of chapter 118, Laws of 1925 (Ex. Sess.), limits the right of an appeal from a final judgment to 30 days after the entry of such judgment. Unquestionably the manner of effecting an appeal is procedural, and under our decision in State ex. rel. Foster-Wyman Lumber Co. v. King County (Wash.) 267 P. 770, rule X is authorized by the act of 1925. The defendants' appeal not having been taken within 30 days, it must be and it is dismissed.

In the absence of a cross-appeal, we cannot inquire into the correctness of the items making up the total of the plaintiff's judgment, but are limited in our inquiry here to the one question raised by the plaintiff's appeal; namely, Was he entitled to a lien and to have it foreclosed?

It appears that at the time the contract for the erection of the building was entered into that there were two corporations, one the Tacoma Can Company, the other the National Can Company. Both occupied the same offices. Both names were upon the door, and the business done was so much in common as to tend to the confusion of those not fully informed. During the course of the construction of the building, the National Can Company took over all of the assets of the Tacoma Can Company and assumed all of its liabilities. Also, at about that time, long after the work began, but before it was completed, the National Can Company acquired the legal title to the real estate upon which the building was being constructed.

There seems to be no question but that the notice of lien was filed in due time and was sufficient in all respects save that it described the owner of the property as the Tacoma National Can Company instead of the National Can Company, and that at the time of recording no notarial seal was affixed to the jurat. The testimony shows that shortly after the lien notice was returned to the claimant from the auditor's office, the notary affixed his seal, but the lien notice was not thereafter re-recorded. No other defects being pointed out, we are led to suppose that the trial court denied the right of the lien by reason of one or both of these defects. It can hardly be that the lien was rejected because the word 'Tacoma' preceded the correct name of the owner 'National Can Company.' Indeed, on the trial when a motion was made to amend the notice by striking the word 'Tacoma' from the name of the owner, the court allowed that amendment tentatively, subject to a possible reversal of the ruling in the course of the trial. We do not find that this tentative permission to amend was ever, by the trial court, revoked, and, since the word 'Tacoma' prefixed to the name of the owner is not shown to have misled any one, was mere surplusage at the most, which does not vitiate, we assume that the trial court did not change his ruling in that respect and must have denied the lien simply and solely because of the lack of the notarial seal.

It would seem that the ruling of the trial court was based upon the early case of Gates v. Brown, 1 Wash. 470, 25 P 914, and Stetson & Post Mill Co. v. McDonald, 5 Wash. 496, 32 P. 108. Those cases do undoubtedly hold that the omission of the notary's seal is fatal, but those cases were both written when the territorial laws with reference to liens and lien notices were still in full force and effect. Immediately following the decision in the McDonald Case the Legislature of 1893, apparently for the very purpose of avoiding the hardships of the rule announced, enacted a new and comprehensive act entitled 'An Act creating and...