Malfa v. Crisp

• Decision Date: 10 April 1909
• Citation: 52 Wash. 509,100 P. 1012
• Parties: MALFA et al. v. CRISP.
• Court: Washington Supreme Court

100 P. 1012

52 Wash. 509

MALFA et al. v. CRISP.

Supreme Court of Washington

April 10, 1909

Appeal from Superior Court, Douglas County; R. S. Steiner, Judge.

Action by Frank Malfa and another, copartners doing business under the firm name and style of F. Malfa & Son, against William F Crisp. Judgment for plaintiffs. Defendant appeals. Affirmed.

M. B. Malloy and Arthur McGuire, for appellant.

CROW J.

This action was commenced on September 18, 1907, by Frank Malfa and William Malfa, copartners as F. Malfa & Son, against William F. Crisp, to foreclose a materialman's and mechanic's lien real estate in the city of Waterville Douglas county. From a decree in favor of the plaintiffs, the defendant has appealed.

There being no statement of facts, we can consider only such assignments of error as are predicated upon the pleadings and the orders of the trial court. The respondents, whose firm name does not contain the individual names of all persons interested in their partnership, did not plead in their original complaint any compliance with Sess. Laws 1907, p 288, c. 145, nor did they file any certificate with the county auditor until after the commencement of this action. Appellant, therefore, contends that they were not entitled to maintain this action, and that it should have been dismissed. Appellant demurred to the original complaint on the ground that the respondents had no legal capacity to sue. His demurrer was overruled, but he answered instead of standing thereon. Afterwards, on December 7, 1907, the respondents filed with the county auditor the certificate required by chapter 145, p. 288, Sess. Laws 1907, and, having obtained leave of court, pleaded such filing by their supplemental complaint, which was filed in this action on December 10 1907, long before the trial, which occurred in February 1908. Appellant now contends that the certificate was filed too late to enable the respondents to maintain this action. In Sutton & Co. v. Coast Trading Co., 49 Wash. 694, 96 P. 428, we held that failure to file such a certificate with the county auditor before making the contract on which the action was based did not invalidate the contract, and that filing of the certificate before suit, which had been done in that case, entitled the plaintiffs to maintain their action. Here the certificate was filed after the filing of the original complaint, but it had actually been filed with the county auditor and pleaded in the supplemental complaint long before trial, and long before the eight months allowed by section 5908, Ballinger's Ann. Codes & St. (Pierce's Code, § 6110), for commencing this action had expired. By his answer the appellant admitted, and in fact affirmatively pleaded, the contract between himself and respondents on which this action is based. This being true, we fail to understand how he has been prejudiced in the least degree. We think that, under these circumstances, the respondents were entitled to maintain their action already commenced, and prosecute it to final judgment. No practical advantage could have been secured to the appellant by dismissing it. Had such an order been entered, the respondents could have immediately instituted, and would have successfully...