Lindley v. McGlauflin

• Decision Date: 04 June 1910
• Citation: 109 P. 118,58 Wash. 636
• Court: Washington Supreme Court
• Parties: LINDLEY v. McGLAUFLIN et al.

109 P. 118

58 Wash. 636

LINDLEY v. McGLAUFLIN et al.

Supreme Court of Washington

June 4, 1910

Department 2. Appeal from Superior Court, King County; John F. Main Judge.

Action by Hervey Lindley, doing business as the Lindley Lumber &amp Realty Company, against J. R. McGlauflin and others, to foreclose a materialman's lien. Judgment for defendants and plaintiff appeals. Reversed and remanded, with directions.

J. T. Watson and Dorr & Hadley, for appellant.

Roberts, Battle, Hulbert & Tennant and C.J. France, for respondents.

MOUNT J.

This is an appeal from a judgment denying the foreclosure of a materialman's lien. A personal judgment was entered against the defendants J. R. McGlauflin and wife, but the trial court was of the opinion that the right to foreclose the lien was barred, and for that reason denied the foreclosure. The plaintiff appeals from that part of the decree.

It appears that on January 13, 1908, the appellant filed a claim of lien for $1,104.32 for labor and materials furnished in the construction of a house upon certain described real estate, alleging therein that the furnishing of such materials ceased on December 10, 1907. Thereafter, on March 7, 1908, and within 90 days from the time of furnishing the last item, the appellant filed another lien claim for $1,148.12, in which it was recited 'that this claim of lien is made for the purpose of correcting and amending that certain claim of lien heretofore filed, to wit, on January 13, 1908, and recorded in volume 27, Liens, page 522, of King county, Washington.' On September 4, 1908, appellant commenced an action, in which it alleged the filing of the lien on January 13, 1908, and that it afterwards discovered that said lien claim did not contain a complete statement of the materials furnished, and that on March 7, 1908, a correct and amended lien was filed. That action sought to foreclose the first lien as amended by the lien filed March 7, 1908. Thereafter, on October 16, 1908, the appellant voluntarily dismissed, without prejudice, the action commenced on September 4, 1908. Thereafter, on October 30, 1908, appellant brought this action to foreclose the lien claim filed on March 7, 1908. In this action the lien claim filed on January 13, 1908, was not mentioned except as it is referred to by the clause of the lien notice above quoted. It will be noticed that the last item of materials was furnished on December 10, 1907. The first lien claim was filed within 30 days thereafter, and the one now sought to be foreclosed was filed within 90 days. This action was begun within eight months after the filing of the last claim, but not within eight months after the filing of the first claim of lien. The statute provides: 'No lien created by this chapter shall exist, and no action to enforce the same maintained, unless within ninety days from the date of the cessation of the performance of such labor or of the furnishing of such materials, a claim for such lien shall be filed for record as hereinafter provided, * * * and such claim of lien may be amended in case of action brought to foreclose the same, by order of the court, as pleadings may be, in so far as the interests of third parties shall not be affected by such amendment.' Rem. & Bal. Code, § 1134. 'No lien created by this chapter binds the property subject to the lien for a longer period than eight calendar months after the claim has been filed unless an action be commenced in the proper court within that time to enforce such lien. * * *' Rem. & Bal. Code, § 1138.

The main question in this case is whether the eight months began to run from the date of the filing of the first lien claim or the date of the filing of the last lien claim. The lower court was of the opinion that the time began to run from the date of the filing of the first claim, for the reason that there can be filed but one perfect lien claim, and that the first one appeared upon its face to be a perfect claim. The statute does not limit the number of lien claims which may be filed, but it limits the time for filing such claims to within 90 days from the date of the cessation of labor or the furnishing of material. Clearly the appellant was entitled to file a lien notice at any time within the 90 days. It filed one before the expiration of 30 days, and then discovered that it had not included therein the whole amount due. It then, within the 90 days, filed another claim, and stated that this claim is made for the purpose of correcting and amending the prior claim. The statute provides for amendments after action brought, and also that 'the provisions of the law relating to liens created by this chapter and all proceedings thereunder shall be liberally construed with a view to effect their object.' Rem. & Bal. Code,§ 1147. It would seem that such liberal construction would permit a claimant to file as many claims as he thought necessary within the 90-day period, and that, if the first one did not contain his whole claim or was in his opinion defective in any respect, he might within that time file another. Many cases are cited by the appellant as sustaining this rule, while none are cited by the respondent as opposed to it. In Huttig Bros. Mfg. Co. v. Denny Hotel Co., 6...