National Sur. Co. v. Bratnober Lumber Co.

• Decision Date: 25 March 1912
• Parties: NATIONAL SURETY CO. v. BRATNOBER LUMBER CO. et al.
• Court: Washington Supreme Court

122 P. 337

67 Wash. 601

NATIONAL SURETY CO. v. BRATNOBER LUMBER CO. et al.

Supreme Court of Washington

March 25, 1912

Department 1. Appeal from Superior Court, King County; King Dykeman Judge.

Action by the National Surety Company, a corporation, against the Bratnober Lumber Company and others. From judgments for defendants on their counterclaims, plaintiff appeals. Appeal dismissed as to certain defendants and affirmed as to the remainder.

John W Roberts and George L. Spirk, for appellant.

Palmer & Askren, J. H. Allen, James B. Howe, Hugh A. Tait, Lyter &amp Folsom, Herchmer Johnston, Tucker & Hyland, Martin J. Lund, and Byers & Byers, for respondents.

PARKER J.

On December 7, 1909, Paul Steenstrup entered into a contract with the city of Seattle for the construction of a public street improvement. To secure the faithful performance of the contract, and also to secure the claims of laborers, mechanics, materialmen, and others furnishing labor, material, provisions, and supplies, for the carrying on of the work, he executed a bond to the city in the sum of $22,000 conditioned as required by chapter 207, § 1, p. 716, Laws of 1909 (section 1159, Rem. & Bal. Code), which provides that contractors in such cases shall furnish a bond conditioned that they will 'pay all laborers, mechanics and subcontractors and materialmen, and all persons who shall supply such person or persons or subcontractors, with provisions and supplies for the carrying on of such work, all just debts, dues and demands incurred in the performance of such work.' The National Surety Company became surety upon the bond so furnished by Steenstrup. During the progress of the construction of the improvement, numerous claims were filed with the city for work, provisions, and supplies claimed to have been furnished to Steenstrup for the carrying on of the work. These claims were so filed as the law provides, as a prerequisite to the rights of the several claimants to maintain actions therefor against the Surety Company as surety upon the bond. The Surety Company, in order to procure an adjudication of these claims and the extent of its liability therefor as surety upon the bond, commenced this action in the superior court for King county against all of the claimants, seeking to have them all brought into the action and required to litigate their claims therein. The owners of the claims here involved, as well as others, appeared and set up their several claims by cross-complaints. From judgments in their favor against the Surety Company it has appealed to this court. While the judgments are all evidenced in one writing, signed by the court and so entered, they are in effect separate judgments in favor of each claimant against the Surety Company.

A number of respondents, whose separate claims and judgment thereon amount to less than $20, have moved to dismiss the appeal, in so far as it is sought thereby to reverse the judgments which are in their favor. These motions are rested upon the ground that this court has no jurisdiction to entertain an appeal from these judgments, because the amount involved therein, in each case, is less than $200; since there is nothing involved except the recovery of money, the same as if the several claimants were separately suing appellant upon the bond. It could hardly be seriously argued that, if the claimants were attempting to recover the amount of their several claims from appellant by separate actions, there would be any appeal allowable from the judgments in favor of those whose claims are less than $200. State ex rel. Gillette v. Superior Court, 22 Wash. 496, 61 P. 158; State ex rel. Wallace v. Superior Court, 24 Wash. 605, 64 P. 778; State ex rel. Bassett v. Freasure, 39 Wash. 198, 81 P. 688; State ex rel. Plaisie v. Cole, 40 Wash. 474, 82 P. 749; State ex rel. Lack v. Meads, 49 Wash. 468, 95 P. 1022; Hall v. Cowen, 51 Wash. 295, 98 P. 670.

Now, does the mere fact that these claims are sought to be recovered in this one action enlarge the right of appeal of the respective parties in so far as that right may be affected by the amount involved? It seems to us this question has been fully answered in the negative by the decision of this court in Garneau v. Port Blakely Mill Co., 20 Wash. 97, 54 P. 771. It appears that the several claimants in that case had foreclosed their several logger's liens upon certain logs, and before the sale of the logs they had been converted by the mill company to its own use. Thereupon the several claimants, whose liens had been established by the decree, brought an action for damages against the mill company because of its appropriation of the logs, and having been successful in their damage suit against the mill company, it appealed to this court, when they moved for a dismissal of the appeal because the amount of each of their separate claims was less than $200. Disposing of the motions in favor of the claimants, Justice Dunbar, speaking for the court, said: 'It is argued by the appellant that the plaintiffs, having submitted themselves to the jurisdiction of the court, and having stood ready to receive the benefits of the joint trial, are now estopped from raising the question of jurisdiction; but we do not think this argument is tenable. The law permits them to join in these trials simply for the purpose of convenience, and for the purpose of saving costs to all parties; but it does not, we think, affect any material right which any of the plaintiffs would have had had he brought an independent action and have tried it independently. It is also urged that these actions depend upon a lien, and that, the establishment of the lien being the basis of the action, they do not fall within the constitutional inhibition; but it seems to us that the establishment of the lien is purely incidental, and that the action is a straight action for the recovery of money.' The only difference we see between that situation and this is that in form the Surety Company is here the plaintiff. It is plain, however, that in substance the several claimants are the plaintiffs. Their several claims are affirmatively asserted by cross-complaints. Nothing else is involved, and the fact that appellant commenced the action does not, it seems to us, change the nature of the controversy between them and appellant. Each claimant is, after all, simply attempting to recover the amount of his claim upon the bond from appellant, and as between each claimant and appellant we see nothing more involved than as if each claimant were suing separately in an action commenced by himself. It is true that, by direction of the court, these several judgments are to be satisfied from the fund still remaining in the hands of the city and due to Steenstrup upon the contract, in so far as that fund will go; but they are nevertheless personal judgments against the Surety Company as prayed for by the claimants in their several cross-complaints.

We do not find in the record formal motions to dismiss the appeal made by all of the judgment creditors whose claims are less than $200; but since the question has come to our attention, and it is jurisdictional, we conclude that the appeal must be dismissed as to all of the judgments rendered upon claims, the several amounts of which are less than $200. The leaves for consideration only those claims which involve more than $200. These we will now notice.

The contentions of counsel for appellant against the several claims of respondents are rested upon the assumption that they are all for services, provisions, and supplies of such nature as did not enter into or become a part of the finished improvement, so that a right of lien therefor would have existed under the law if they had been rendered and furnished to an individual under like circumstances. In other words, that the items of such claims are not such as are secured by the bond because they would not be lienable items if the improvement had been constructed for a private person. We will assume for the sake of argument that the items here involved are of this nature, and will notice the general contentions of counsel for appellant based upon this assumption, before discussing the several claims separately.

It is argued, in substance, that we should approach the solution of this controversy and proceed along the same line of reasoning as if there were here involved the question of enforcing these claims as liens against the improvement and the land upon which it is situated. It may be conceded that laws of this nature, generally speaking, have for their object the securing of claims of mechanics, materialmen, and others, in lieu of lien laws which are not applicable to public improvement, and that the principles of construction applicable thereto are in substance the same. It does not necessarily follow, however, that we are to look to the statutory lien laws to determine as to whether or not a particular item is secured by such a bond. If the law providing for the furnishing of the bond also provides that only 'lienable items,' as defined by the lien statutes, are to be secured thereby, then, of course, the lien statutes furnish the complete answer to the question of the validity of such claims as against the bond. This was the view taken by this court in Clough v. Spokane, 7 Wash. 279, 34 P. 934, where there was involved a claim for labor performed upon a public improvement for the contractor and it was sought to hold the city of Spokane liable to pay for such labor because it had failed to take from the contractor a sufficient bond securing claims for labor performed upon the contract, as it was there insisted that the law required the city to do, and failing therein had rendered itself liable. A reading of that decision will show,...