Pacific Mfg. Co. v. Brown

• Decision Date: 01 March 1894
• Citation: 36 P. 273,8 Wash. 347
• Court: Washington Supreme Court
• Parties: PACIFIC MANUF'G CO. v. BROWN ET AL. (JEFFERSON, INTERVENER. SULLIVAN ET AL. v. BROWN ET AL. (YESLER WOOD, COAL & LUMBER CO. ET AL., INTERVENERS.

36 P. 273

8 Wash. 347

PACIFIC MANUF'G CO. v. BROWN ET AL. (JEFFERSON, INTERVENER.

SULLIVAN ET AL. v. BROWN ET AL. (YESLER WOOD, COAL & LUMBER CO. ET AL., INTERVENERS. ^[1]

Supreme Court of Washington

March 1, 1894

Appeal from superior court, King county; J. W. Langley, Judge.

Action by the Pacific Manufacturing Company, a corporation, against E. Brown, Eliza Borella, A. E. Cook, Dexter Horton & Co., the King County Bank, and Henry B. Hickey, to enforce a mechanic's lien. Action by L. H. Sullivan and C.J Sullivan, copartners, doing business under the firm name of Sullivan Bros., against E. Brown, Eliza Borella, and Henry B Hickey, for a like purpose. Eugene H. Jefferson intervened in both suits, and the Yesler Wood, Coal & Lumber Company in the second suit, and the two suits were consolidated. From a judgment sustaining the liens, defendant Hickey and intervener Jefferson appeal. Reversed.

Smith & Littell and James F. McElroy, for appellants, Henry B. Hickey and Eugene H. Jefferson.

Laban H. Wheeler, for respondent Pacific Manuf'g Co.

Wiestling & Wiestling, for respondent Yesler Wood, Coal & Lumber Co.

SCOTT J.

The Pacific Manufacturing Company and the Yesler Wood, Coal &amp Lumber Company separately instituted proceedings to foreclose liens upon certain lands for materials furnished, which were used in the construction of a building erected thereon. These actions were consolidated and tried with two certain other actions, also brought to enforce liens against said property. The lands in controversy were alleged by the Pacific Manufacturing Company and the Yesler Wood, Coal & Lumber Company to have belonged at the time of the filing of their liens to the defendant Eliza Borella, in which lands the defendant Hickey had acquired an interest and estate by reason of a sheriff's deed issued to him pursuant to a sale on a judgment foreclosing a mortgage executed by said Eliza Borella on said lands and premises to him. The intervener Jefferson claims and has an interest in said lands and premises under and by virtue of a sheriff's deed executed to him upon a certificate of purchase given by reason of a sale pursuant to a judgment foreclosing a mortgage thereon of date September 2, 1879. The proceedings to foreclose said last-named mortgage were commenced April 25, 1891, and judgment was entered thereon October 12, 1891. The mortgage was recorded September 4, 1879, and apparently was a prior incumbrance to the lien claims here in controversy. Judgment was rendered in the lower court in July, 1893, establishing the liens of the Pacific Manufacturing Company and the Yesler Wood, Coal & Lumber Company, and an appeal was taken. At the time the suit to foreclose the mortgage last mentioned was commenced, neither of said lien claimants had filed their notice or claim of lien, and neither of them was made a party to said suit. It does not appear that appellant Hickey, although named as a party defendant, was served with process in the suits to foreclose said liens. On November 21, 1891, he appeared and answered in the suit wherein the Yesler Wood, Coal & Lumber Company was interested. This was after the rendition of the judgments in said mortgage foreclosure suits. He first appeared and answered in the lien suit brought by the Pacific Manufacturing Company on October 7, 1891, and subsequently filed a supplemental pleading. Appellant Jefferson intervened in said lien suits, respectively, in January and March, 1893. The rights of said appellants are somewhat antagonistic to each other, but no point is made thereon in this appeal, and, as they are both desirous of defeating said lien claims, they have united in one brief, and present the points hereinafter discussed in common.

It is contended by appellants that the lower court erred in refusing to dismiss the actions brought to foreclose said liens because more than two years had elapsed from the time when the materials were furnished. It is contended that under section 1670, vol. 1, of the Code, suits to enforce such liens must be terminated by obtaining a final judgment within two years from the time of the furnishing of the materials or the expiration of the credit, if any is given, and, unless said liens are established and finally determined within such period of two years, that the lien claims lapse, and become lost. It is not contended that said proceedings were not commenced within the time limited by said statute. We are of the opinion this point is not well taken, and that said statute only relates to the time of the commencement of the action; that is, that the action must be commenced within eight months after the claim has been filed; or, if a credit be given, then within eight months from the expiration of such credit; and that the following clause, "but no lien shall continue in force under this chapter for a longer time than two years from the time the work is completed by agreement or credit given," means that such credit cannot be extended for a longer time than two years, and the lien maintained.

It is further contended by the appellants that said lien claimants were barred from waging their actions herein by reason of the judgment rendered in the case of the Oregon & Washington Mortgage Savings Bank, Limited, v. Anthony Borella et al being the mortgage foreclosure suit heretofore mentioned, wherein judgment was rendered on October 12, 1891, although they were not parties thereto. No notice of lis pendens was filed in foreclosing this mortgage, but it is contended by appellants that these lien claimants had actual knowledge of the pendency of said suit. It is contended that one Mr. Stone, who was the manager of the Yesler Wood, Coal & Lumber Company, had notice thereof in the spring of 1891, and that the Pacific Manufacturing Company had such knowledge by reason of information furnished to one Hauser, who was the manager of said company; and, further, that it must be charged with notice, because it appears by the record that its attorney who drew the lien notice and complaint to forclose the same had notice thereof, and was in fact the attorney for the plaintiff in said mortgage foreclosure suit. The actions to foreclose said lien claims were commenced May 16 and September 24, 1891, respectively, during which time said suit to foreclose the mortgage aforesaid was pending; and it appears that neither of said lien claimants took any steps, by intervening or otherwise, to protect their rights in the premises in the judgment of foreclosure therein sought to be obtained, but remained quiescent, and allowed the property to be sold at sheriff's sale, and a sheriff's deed to issue to the intervener Jefferson. It is contended by the respondents that said lien claims were not barred...