Dolan v. Cain

• Decision Date: 01 July 1910
• Citation: 109 P. 1009,59 Wash. 259
• Court: Washington Supreme Court
• Parties: DOLAN et al. v. CAIN.

109 P. 1009

59 Wash. 259

DOLAN et al. v. CAIN.

Supreme Court of Washington

July 1, 1910

Department 1. Appeal from Superior Court, Whatcom County; Ed. E. Hardin Judge.

Action by Ora Bell Dolan and another against D. J. Cain. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Waters & Downer, for appellant.

Neterer Pemberton & Sather, for respondents.

GOSE J.

The respondents brought this action to recover a balance due for boarding the employés of the appellant, and to foreclose a lien upon logs and other personal property. The court denied the lien, but entered a personal judgment against the appellant, from which he has appealed.

The complaint alleges that between certain dates the respondent Ora Bell Dolan, at the request of the appellant, furnished the supplies and the board for his employés at his logging camp, at the agreed price of 75 cents per day per man, that there is a balance due of $1,047.51, and that the services were rendered in assisting in obtaining and securing logs spars, etc. The complaint further alleges the filing of a notice of lien and the nonpayment of the claim, and prays for a personal judgment against the appellant, the foreclosure of the lien, a sale of the property, and the application of the proceeds of the sale to the payment of the judgment. A general demurrer having been interposed and overruled, issue was joined by answer. A personal judgment was entered in favor of the respondents and against the appellant for $1,018.31, with legal interest and costs.

The appellant contends: (1) That there is a fatal variance in that the complaint alleges an express contract and the evidence, if it establishes any liability, discloses that the appellant is liable upon a quantum meruit or upon the principle of estoppel; and (2) that the evidence does not disclose any liability upon the part of the appellant. In view of our conclusion upon the evidence, these questions will be considered together. A careful reading of the evidence has convinced us that the appellant agreed to pay the respondent Ora Bell Dolan for furnishing supplies and board for his men, as alleged. While the evidence is conflicting, we think the learned trial court was right in his conclusion that it preponderates in favor of the respondents. A discussion of the evidence would serve no good purpose.

At the close of the respondents' evidence, the appellant moved for a dismissal of the action, on the ground that the lien had not been established, and upon the further ground that the right to a personal judgment was not shown. The denial of the motion is assigned as error. It is contended that when the respondents failed to establish a lien, the court lost jurisdiction to proceed other than to enter a judgment of dismissal. It is argued that the method pursued deprived the appellant of a trial by jury, that the case should be remanded with directions to dismiss the action, and that the respondents should be required to pursue their remedy at law.

This position is not tenable. The respondents in good faith claimed a lien under the provisions of Rem. & Bal. Code, § 1162. Rem. & Bal. Code, § 1172, provides that liens upon sawlogs, etc., shall be enforced by a civil suit in the superior court of the county where the lien is filed, and shall be governed by the laws regulating proceedings in civil actions. Section 1179 provides that in a civil action, a judgment must be rendered in favor of the person having a lien for the amount due him, that the court shall order the property subject to the lien to be sold, and that the proceeds of the sale shall be applied upon the judgment. We have repeatedly held that, where a lien is asserted in good faith but not established, the court retains jurisdiction for the purpose of determining the rights of the parties and entering an appropriate judgment.

In the recent case of Pacific Iron & Steel Works v. Goerig, 55 Wash. 149, 104 P. 151, the respondent had performed work and labor in repairing a steam shovel, and sought to enforce a lien for the sum due him under Laws 1905, p. 137. The lien was denied, and a personal judgment entered in his favor for the value of his services. It was contended that when the lien failed, the action became one at law, which a court of equity had no jurisdiction to determine. In answering this contention, we said: 'The court unquestionably had jurisdiction of the action and the right to proceed with its trial upon the merits. If the appellant had asked for a jury trial on the legal questions involved after the appellant had abandoned the lien, the trial court might properly have granted the motion even to the extent of postponing the trial to a later time, especially as the respondent introduced no evidence to establish its lien, but no error was committed in refusing to dismiss for want of jurisdiction.'

In Hildebrandt v. Savage, 4 Wash. 524, 30 P. 643, 32 P. 109, an action to foreclose a lien for material furnished and labor performed, the trial court held the lien invalid, but rendered a personal judgment for the amount found due under the contract. It was urged that the court erred in entering the judgment. In passing upon this contention, it was said: '* * * We are also of the opinion that, to take advantage of this on appeal, appellant must have raised the question at the trial * * * either by objecting to the action proceeding in equity, or by demanding a trial by jury.'

In Stetson & Post Mill Co. v. McDonald, 5 Wash. 496, 32 P. 108, an action foreclosing a materialman's lien, the right to a lien was denied, and a personal judgment was entered against the party in default, but denied as to another. This was held error, the court saying: 'The defendants entered upon a trial as to the merits of the case, * * * without any objection or any demand to have the case tried by jury,' and that a judgment should have been rendered against the contractors for the amount found to be due for the materials, notwithstanding the fact that the lien was not established.

In Robinson v. Brooks, 31 Wash. 60, ...