McCreery v. Carter

• Decision Date: 06 May 1913
• Parties: McCREERY v. CARTER et al.
• Court: Washington Supreme Court

131 P. 1125

73 Wash. 394

McCREERY v. CARTER et al.

Supreme Court of Washington

May 6, 1913

Department 2. Appeal from Superior Court, Cowlitz County; H. E McKenney, Judge.

Action by H. W. McCreery against L. L. Carter and others. From a judgment for plaintiff, defendants L. L. Carter and another appeal. Affirmed.

George S. Shepherd and Edward J. Clark, both of Portland, Or., for appellants.

Edgar J. Wright, of Seattle, for respondent.

MAIN J.

This action was brought against L. L. Carter and wife, A. L. Davis and wife, and C. B. Ferris and wife. In the complaint two causes of action are set out, the first of which alleges that the plaintiff sold and delivered to the defendants certain machinery which was used in the construction and equipment of the steamboat 'Una,' and that as evidence of the indebtedness a promissory note was executed and delivered to the plaintiff. And as a second cause of action it is alleged that on a later date, at the special instance and request of the defendants, the plaintiff sold and delivered to them certain transmission machinery which entered into and became a part of the same vessel. Subsequent to the institution of the action, a receiver was appointed for the Una. The cause was tried to the court without a jury. The plaintiff prevailed. The decree provides: (1) That the plaintiff have judgment, specifying the amount thereof; (2) that the judgment be a paramount lien upon the steamer Una; (3) the receiver was directed to sell the Una; and (4) that, in the event the proceeds of the sale of the Una be not sufficient to satisfy the judgment, then and in that event the plaintiff have a deficiency judgment for the balance. The defendants Carter and wife appeal.

No statement of facts or bill of exceptions has been brought to this court. The questions sought to be raised on the record here are: (1) The jurisdiction of the superior court; (2) the sufficiency of the complaint; and (3) the validity of the deficiency judgment.

The appellant contends that, in actions of this character, the superior court does not have jurisdiction; but this question has been determined adversely to such contention. In Callahan v. AEtna Indemnity Co., 33 Wash. 583, 74 P 693, it is said: 'The materials were used in the ship. The case stands, then, the same as though appellant himself had furnished the materials to the construction company at the time they were used, and for the purpose...