Home Sav. & Loan Ass'n v. Burton

• Decision Date: 24 March 1899
• Citation: 20 Wash. 688,56 P. 940
• Court: Washington Supreme Court
• Parties: HOME SAVINGS & LOAN ASS'N v. BURTON et al.

56 P. 940

20 Wash. 688

HOME SAVINGS & LOAN ASS'N v. BURTON et al.

Supreme Court of Washington

March 24, 1899

Appeal from superior court, Whitman county; William McDonald, Judge.

Suit by the Home Savings & Loan Association against Alfred F. Burton and others, to foreclose a mortgage. From a decree adjudging that the lien of the mortgage, except for $2,000, was inferior to certain mechanics' liens, plaintiff appeals. Reversed.

Samuel R. Stern, for appellant.

F. M Ellsworth, for respondent Colfax Lumber Co.

F. M Ellsworth and A. E. Isham, for respondent Burnham & Clapp.

Fullerton & Ettinger, Chadwick & Bryant, and Trimble & Pattison, for other respondents.

ANDERS J.

Several of the respondents have moved to dismiss this appeal on the alleged grounds (1) that the record does not show that the notice of appeal was served upon F. M Ellsworth, administrator of the estate of Florence Burton, deceased, and (2) that no service of the appeal bond or notice of the filing thereof has ever been served upon any of the respondents.

As to the first ground of the motion, the record discloses that F. M. Ellsworth appeared in the court below as the attorney for the Colfax Lumber Company, and also as attorney for himself as administrator of the estate of Florence Burton. The notice of appeal was directed to all the defendants in the action, and service of the same was admitted by said Ellsworth as attorney for the Colfax Lumber Company. There is no affidavit or return of the sheriff in the record showing service upon him as attorney for himself, but it does not follow that the appeal must necessarily be dismissed on that account. It is true that the statute relating to appeals to the supreme court provides that, if the appeal be not taken at the time when the judgment or order appealed from is rendered or made, then the party desiring to appeal may, by himself or his attorney, within the time prescribed in section 3 of the act, serve written notice on the prevailing party or his attorney that he appeals from such judgment or order to the supreme court, and within five days after the service of such notice he shall file with the clerk of the superior court the original or a copy of such notice, with proof or the written admission of the service thereof, and thereupon the clerk shall enter such notice, with the proof or admission of service thereof, in the journal of the court. But the same act also provides that no appeal shall be dismissed for any informality or defect in the notice of appeal, or the service thereof, if from the notice, or other parts of the record on appeal, it appears that the adverse party has had sufficient notice of the appeal, describing the judgment or order appealed from with such certainty that his substantial rights would not be prejudiced by the hearing of the appeal. Laws 1893, pp. 129, 130. Now, we are utterly unable to understand by what process of reasoning Mr. Ellsworth, after having accepted service of this notice of appeal as attorney for the Colfax Lumber Company, can now successfully maintain, as attorney for himself as administrator, that he has had no notice of the appeal. In Howard v. Shaw, 10 Wash. 151, 38 P. 746, this court held that, where a lawyer appeared for himself and as attorney for his wife, service of notice of appeal on him, directed to both, was good service as to the wife; and the same principle is applicable here. See, also, Hendricks v. Edmiston, 15 Wash. 687, 47 P. 29.

It is also claimed that there is no proof of service of the notice of appeal on the minor children of Mrs. Burton, or on Warren Philbrick, their guardian ad litem; but it is a sufficient answer to this objection to observe that it does not appear that they, or either of them, either demurred or answered or gave any written notice of appearance in the action, and, under such circumstances, no service upon them was necessary.

As to the second ground, we find no provision in the statute for the dismissal of an appeal for want of service of the appeal bond on the adverse parties. The statute does provide, however, that any respondent may except to the sufficiency of the surety or sureties in an appeal bond within ten days after the service on him of the notice of appeal, or within five days after the service on him of the bond or written notice of the filing thereof; but the most than can be claimed for this provision is that it permits the respondent to except to the sufficiency of the sureties in the bond after the expiration of the time elsewhere prescribed by the statute. The law provides, and every respondent must take notice, that an appeal in this state becomes ineffectual for any purpose unless a proper appeal bond is filed within five days after the giving or serving of the notice of appeal; and there is therefore no apparent reason for dismissing an appeal for want of service of the bond, and no provision has, as we have stated, been made for such dismissal. It is also claimed that the bond in this instance is not such as is required by law, and is insufficient both in form and substance; but it is not attempted to be shown wherein it is insufficient, and we have failed, on inspection, to discover that it is insufficient. The respondents also moved the court to strike the exceptions to the findings of fact and conclusions of law as made by the court, for the alleged reason that said exceptions were not taken within the time prescribed by law. With regard to this motion, it is proper to say that it is one not contemplated by the statute, and not sanctioned by the practice of this court. If exceptions, in any particular case, are not take within the prescribed time, they will not be considered, if objected to by this court, and a motion to strike is therefore entirely unnecessary. It is also claimed that the exceptions to the findings of the court were not taken within the time prescribed by the statute. It appears that a copy of the findings of fact and conclusions of law was served on counsel for appellant by mail, and there is some controversy as to whether the exceptions thereto were in fact taken in time. But whether or not they were actually filed within the time limited is immaterial in this instance, for the record discloses that proper and timely exceptions were taken to the findings proposed by appellant and refused by the court. These respondents further move the court to strike out the statement of facts on the grounds that the same was not properly certified by the judge before whom the cause was tried, and that no notice was given of the settlement of the proposed statement to the moving respondents. We perceive no merit in this motion. The certificate of the trial judge seems to be substantially in accordance with the statute; and inasmuch as no objections were filed, or substantial amendments proposed, to the statement of facts, by these or any other respondents, no notice to them of the settlement of the statement was required under the statute. All of the foregoing motions are denied.

During the summer of 1892, the respondent Alfred F. Burton and his then wife, Florence Burton, conceived the scheme of erecting a three-story hotel building in the city of Colfax, in this state, and for the purpose of obtaining, in part, the funds therefor, they solicited and received a subscription from the citizens of that place of $9,000. Having selected and made arrangements to purchase a site for such building, they employed one John K. Dow, an architect, to prepare plans and specifications for the same, and to estimate the cost thereof. Thereafter they applied to the Home Savings & Loan Association for a loan of $16,000, to be used in the construction of the building. This association loaned money to its own members only, and, for the purpose of obtaining the loan desired, the Burtons subscribed for 160 shares of its capital stock. The association thereupon agreed to make the loan on condition that the Burtons should execute a mortgage as security therefor, upon the lot selected as the hotel site, and upon which the building was to be thereafter erected. Although it was agreed between the parties that the mortgage should be given for the sum of $16,000, it was understood that it should be considered and treated in part as a mortgage for future advances. In pursuance of the agreement, a mortgage on the property in question was executed to the appellant association on August 15, 1892, and the same was recorded on August 20, 1892. A deed of the premises described in the mortgage was also made to the mortgagors on August 15th, and was placed upon record at the same time the mortgage was recorded. The appellant advanced to the mortgagor the sum of $2,000 upon the execution of the mortgage, $1,500 of which was paid to the grantors named in the deed to the Burtons. It was agreed that the balance of the $16,000 mentioned in the mortgage should be advanced from time to time during the progress of the building. Under this mutual arrangement, $3,000 was advanced on October 1, 1892, $4,500 on October 31, 1892, and $3,000 on November 15, 1892. The remainder, $3,500, was not advanced by the appellant for the reason that, prior to the time it was to have been delivered, Burton abandoned the building and left the country, taking with him over $4,000, most, if not all, of which had been donated for building purposes by citizens of Colfax. After the recording of the mortgage in question, and on August 29, 1892, the respondent Burton entered into a contract with the respondents Burnham and Clapp to erect the hotel building in accordance with the plans and specifications of the architect, for the sum of $20,874, which was to be paid in installments of 85 per cent. of the amount of work completed on the 1st and 15th...