Hill v. Frink

• Citation: 11 Wash. 562,40 P. 128
• Parties: HILL v. FRINK ET AL.
• Decision Date: 08 April 1895
• Court: United States State Supreme Court of Washington

40 P. 128

11 Wash. 562

HILL v. FRINK ET AL.

Supreme Court of Washington

April 8, 1895

Appeal from superior court, Lincoln county; Wallace Mount, Judge.

Action by Charles Hill against W. E. Frink and others to foreclose a laborer's lien. From a judgment dismissing certain cross complaints, a part of the defendants appeal. Affirmed.

Higgins & Martin, for appellants.

N. T Caton and Merrit & Salisbury, for respondents.

ANDERS J.

This was an action to foreclose a laborer's lien on a certain quantity of wheat owned by the defendant W. E. Frink. The defendants other than W. E. Frink and Gehres & Hertrich claimed similar liens on the same wheat, which they asked to have foreclosed. Each of them filed a separate answer, with which was incorporated a cross complaint, so called, against the defendants Gehres & Hertrich, who, it appears, held a chattel mortgage on the grain in controversy; alleging, in brief, that said codefendants unlawfully took possession of said wheat, and proceeded to foreclose their chattel mortgage, regardless of defendant's prior lien, and caused said wheat to be sold at public sale to parties unknown to defendant, and thereupon, without accounting to defendant, or payment to him for his work and labor performed in harvesting and threshing said wheat converted the proceeds thereof to their own use, and praying the court to adjudge that he have a preferred and prior lien upon the moneys converted to their use by said Gehres &amp Hertrich, arising from the sale of said wheat, and that he have and recover from the said Gehres & Hertrich upon said lien, and for the conversion of said wheat, and for the proceeds thereof, the amount due for his said work, the cost of preparing, filing, and recording his lien, and $25 as attorney's fees and costs. The court entered a decree, as prayed, in favor of these several defendants and against the defendant W. E. Frink, but dismissed the cross complaint against Gehres & Hertrich, on the latter's motion. And the only point made on this appeal is that the granting of this motion was error.

It is insisted on behalf of the appellants that their respective answers and cross complaints stated facts constituting a valid cause of action against Gehres & Hertrich, and that it was the duty of the court to determine the issues thus tendered, and not to summarily turn them out of court, and thus compel them to seek redress in an independent action. On the other hand, these respondents claim that the cross complaints were properly dismissed, for...