Heal v. Evans Creek Coal & Coke Co.

• Decision Date: 07 December 1912
• Citation: 71 Wash. 225,128 P. 211
• Court: Washington Supreme Court
• Parties: HEAL et al. v. EVANS CREEK COAL & COKE CO. et al.

128 P. 211

71 Wash. 225

HEAL et al. v. EVANS CREEK COAL & COKE CO. et al.

Supreme Court of Washington

December 7, 1912

Department 2. Appeal from Superior Court, Pierce County; Ernest M. Card Judge.

Consolidated actions by John W. Heal, Jr., and another against the Evans Creek Coal & Coke Company and others, and by August Tucker and another against the same defendants. From a judgment granting a part of the relief demanded, plaintiffs August Tucker and another appeal. Affirmed.

Brady &amp Rummens, of Seattle, and H. W. Lueders, of Tacoma, for appellants.

West &amp Wright and Peters & Powell, all of Seattle, for respondents.

FULLERTON J.

On June 28, 1908, and for some years prior thereto, the defendant Evans Creek Coal & Coke Company operated certain coal mines situated in Pierce county. The mines were located partly on its own property and partly on lands belonging to others, on which it held leases. One John A. Wood was an officer of the company and its principal stockholder. During the time the mine was being operated, Wood advanced, for the use of the company, large sums of money, and indorsed its paper at neighboring banks for other large sums. On the date above given the company gave to Wood a mortgage upon all its property, both real and personal, conditioned to secure the money already advanced, to protect him on his liability as indorser of the company's notes, and to secure such future advances as he should from time to time make to the company. This mortgage was seasonably recorded as a real estate mortgage, but was never filed as a chattel mortgage. After receiving the mortgage Wood assigned it to the National Bank of Commerce of Tacoma to secure a note of $24,000 owing the bank by the coal company, on which he was indorser. Wood died in the spring of 1910, being then domiciled in the state of Pennsylvania. The respondent Samuel L. Wood is his son, and was named in his will as executor thereof. After Samuel L. Wood became executor, he took up in his individual capacity the note for $24,000 from the National Bank of Commerce, and received from the bank an assignment of the mortgage executed by the coal company to John A. Wood, and in his capacity as executor assigned all of the claims of the estate of John A. Wood against the defendant coal company to the respondent John W. Heal, Jr. The assignment, however, was made solely for the purposes of enforcing the collection of the claims; it being conceived that a foreign executor did not have capacity to sue in this state.

Subsequent to the death of John A. Wood, the appellants Tucker and Burke performed labor for the defendant Evans Creek Coal & Coke Company at certain fixed wages, and filed laborers' liens on the property of the company to secure the several amounts due them. These claims were seemingly filed under the provisions of chapter 4 of title 8 of Rem. & Bal. Code, but neither of the claimants served the notice required by section 1150 of that chapter. The liens, however, are concededly valid as mechanics' liens under chapter 3 of the same title. On December 10, 1910, the appellants brought separate actions to foreclose their liens. On January 20, 1911, the respondents Heal and Wood brought a joint action to foreclose the mortgage; each claiming certain of the indebtedness secured thereby. The appellants Tucker and Burke were made parties defendant to the foreclosure action, and subsequently all three actions wee consolidated. After such consolidation the appellants filed separate answers to the complaint of the mortgage holders, claiming that their liens upon the mortgaged property were first and superior to the lien of the mortgage. On the issues thus made a trial was had upon the merits of the action, at the conclusion of which the court adjudged that the mortgage of the respondents was a first and superior lien upon all of the mortgaged property to the liens filed by the appellants Tucker and Burke, and entered a decree directing that the property be sold and the proceeds of the sale applied, first, to satisfaction of the mortgage, and, second, to the satisfaction of the appellants' liens, awarding to all of the parties judgment over against the corporation for any deficiency that should remain after applying the proceeds of the sale of the mortgage property to the satisfaction of the amounts found to be due to each of them. From the decree the lienholders appeal.

The appellant Tucker first complains of the order consolidating the several actions for trial, and of the form of the decree contending that he should have been awarded a separate decree for the amount due him, unconnected with the decree of the other...