Powell v. Nolan
| Decision Date | 25 January 1902 |
| Citation | 67 P. 712,27 Wash. 318 |
| Parties | POWELL v. NOLAN et al. |
| Court | Washington Supreme Court |
Appeal from superior court, Spokane county; George W. Belt, Judge.
Action by F. M. Powell against Susie A. Nolan, the Pennsylvania Mortgage Investment Company, and others. Susie A. Nolan and the investment company appeal from a judgment in favor of their codefendants and plaintiff. Reversed.
Gleeson & Stayt, for appellants.
Stephens & Bunn, for respondent Powell.
John A Peacock, for respondent Holland-Horr Mill Co.
Danson & Huneke, for respondent Griffith Heating & Plumbing Supply Co.
This is an action to foreclose liens under the mechanic's lien law (sections 5900-5918, Ballinger's Ann. Codes & St.). At the time the action was brought and final decree entered and at the time the building contracts were entered into, the material furnished, and work done, the real estate on which the buildings were erected was the community property of James Nolan and Susie Nolan. It consisted of the east half of lots 1 and 2, the south 30 feet of the east half of lot 3 and lots 4, 5, and 6, in block 22, Wolverton & Conlan's addition to Spokane Falls. F. M. Powell verbally contracted with the community for the erection and construction of a dwelling house on the east half of said lots 1 and 2 and the south 30 feet of said lot 3. The contract price was $800. He furnished extras to the amount of $120.20. He was paid on account $617.50. His lien was for $302.75. He never personally performed any labor on the house. He superintended its construction, and selected and contracted for the material. He paid for all the labor and material except the claim for materials of the Holland-Horr Mill Company, amounting to $235. He requested the community to pay this claim, and deduct the amount of the same from the amount due him. This the community failed to do. It was agreed between the community and Powell on January 16, 1900, that there was due to Powell on the contract price of $800 the sum of $302.75. Powell made the contract on the 20th and commenced the erection of the house on the 23d day of September, 1899, and completed his contract on the 23d day of December, 1899. On the 23d day of October, 1899, the community executed a mortgage for $1,000, in favor of the Pennsylvania Mortgage Investment Company, on the south 40 feet of said lot 4 and the north 20 feet of said lot 3. This action was brought February 28, 1900, by F. M. Powell against Susie A. Nolan, James Nolan, and the Pennsylvania Mortgage Investment Company, as defendants. The original complaint is not in the record. On April 17, 1900, an amended complaint was filed by Powell. In this complaint P.J. Dullanty and the Holland-Horr Mill Company were joined with the other defendants as defendants. All that is alleged in the amended complaint as to the interest of all of the said defendants is that they have or claim to have some interest in, claim to, or lien upon the premises, or some portion thereof, which interest, claim, or lien, if any they or either of them have, is subsequent, subject, and inferior to the lien of Powell. Proof as to the service of the original complaint and summons is by the affidavit of one Charles Grant, attached to the summons, and is to the effect 'that on the 1st day of March, 1900, in the city and county of Spokane, state of Washington, he served the attached summons upon defendant Susie A. Nolan by delivering to and leaving with her personally a full, true, and correct copy of said summons, together with a full, true, and correct copy of the complaint in said action; that at said time and place he served the attached summons upon defendant James Nolan by delivering to Susie A. Nolan, wife of said James Nolan, and a person of suitable age and discretion, at the usual place of residence of said James Nolan, a full, true, and correct copy of the complaint in said action, said James Nolan not being at his said residence at the time of the said service.' At the same time proper service was had on the Pennsylvania Mortgage Investment Company. Proof of service of the amended complaint on James Nolan is by the affidavit of one Grant, attached to the amended complaint, and is as follows: 'That on April 18, 1900, in the city and county of Spokane, state of Washington, he served the foregoing amended complaint upon defendant James Nolan by delivering a full, true, and correct copy thereof to Susie A. Nolan personally at the usual place of residence of said James Nolan, she being the wife of said James Nolan, and a person of suitable age and discretion, said James Nolan not being at his said residence at the time of said service.' On the 29th of September, 1900, on motion of F. M. Powell, the default of James Nolan, for want of an answer to the amended complaint, was entered. On May 29, 1900, P.J. Dullanty filed what purports to be an answer and cross complaint. In this answer and cross complaint, to which is attached a summons in the usual form, Rebecca S. Robinson and _____ McDaniels are made parties defendant, in addition to the defendants in the amended complaint. The record fails to show any service of the summons or cross complaint of Dullanty on James Nolan. The court finds as a fact due and regular service of the summons and cross complaint of Dullanty on James Nolan. There is no exception to this finding. On November 3, 1900, the Holland-Horr Mill Company filed what purported to be an answer and cross complaint, to which was attached a summons in the usual form. The record fails to show any service of this answer, summons, or cross complaint on James Nolan. McDaniels never appeared in the action. James Nolan never appeared. All the others named did appear. Issues were framedand joined by cross complaints, answers, and replies between the parties who did appear. During the progress of the trial it was developed that on the 17th of October, 1900, Dullanty assigned his claim to John H. Griffith and George H. Hughes, partners under the firm name of the Griffith Heating & Plumbing Supply Company. During the trial a motion was made by Dullanty, Griffith, and Hughes that the firm of Griffith Heating & Plumbing Supply Company be substituted as the successor of Dullanty. This motion was granted over the objection of the appellants. Dullanty's claim was for plumbing work and materials upon four houses,--one on lot 6, another on lot 5 and part of lot 4, another on part of lot 4 and part of lot 3, and another on the east half of lots 1 and 2, of said block 22. The community contracted with Dullanty to pay the reasonable worth of said materials and work. The work was done and materials furnished between August 24 and December 30, 1899. The amount of the claim on the four houses was $1,212.74. The said amount was distributed as follows: First house, $254.78; the second house, $306.05; the third house, $311.05; and the fourth house,--on which Powell and the Holland-Horr Mill Company claimed a lien,--$340.86. The lien notice of Dullanty covered only houses 2, 3, and 4. The Holland-Horr Mill Company's claim was for $235, a balance for materials furnished Powell, and used in the construction of the fourth house. Rebecca S. Robinson claimed a superior lien for $1,200 by reason of a mortgage executed by the community, of date December 29, 1900, on said lot 5 and the north 10 feet of said lot 4, part of the property on which Dullanty claimed a lien. It developed on the trial that Dullanty had included in his lien an item of $135 for laying water pipe for the four houses. It appeared that Dullanty hired the work done by mechanics, and the material was furnished by material men. He was simply a contractor. He superintended the work, and selected and paid for the labor and material. The court found in favor of Powell, and gave him a judgment against Susie A. Nolan and James Nolan for $325 and costs, and an attorney's fee of $50, decreed the same a lien upon the real estate upon which the fourth house stood and the appurtenances thereto, and adjudged the said lien subject to the lien of the Holland-Horr Mill Company for $235. It further adjudged that on the payment of the last sum Powell should be entitled to recover $90, interest and costs, and $50 as attorney's fee; and that said lien was prior to the mortgage of the Pennsylvania Mortgage Investment Company and the Dullanty lien. The court found in favor of the Holland-Horr Mill Company, and gave it a judgment against Susie A. Nolan and James Nolan for $253 and costs, and an attorney's fee of $50, and decreed the same a lien prior to the lien of all others in the action on the real estate on which the fourth house was erected and the appurtenances attached thereto. The court found in favor of the Griffith Heating & Plumbing Supply Company, gave it a judgment against Susie A. Nolan and James Nolan for the sum of $712.74, with interest and costs, and an attorney's fee of $75; and as to all said sum except $135 it was decreed that the same was a lien on the real estate on which were erected the second, third, and fourth houses, with their appurtenances, subject, however, to the lien of the Holland-Horr Mill Company and the lien of Powell, and subject to the lien of said mortgages. The decree ordered the real estate sold to satisfy the liens, and decreed that the purchasers at such sales should be let into possession, etc. The decree recites that all the defendants have been regularly served with summons and complaint and amended complaint, and that all parties to the action have been duly and regularly served with summons and cross complaint. The court found that James Nolan was regularly served personally with personal summons and amended complaint and with the original complaint. The court also found that James Nolan had been...
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