Turner v. Bellingham Bay Lumber & Mfg. Co.

• Decision Date: 06 August 1894
• Court: Washington Supreme Court
• Parties: TURNER ET UX. v. BELLINGHAM BAY LUMBER & MANUF'G CO. ET AL.

37 P. 674

9 Wash. 484

TURNER ET UX. v. BELLINGHAM BAY LUMBER & MANUF'G CO. ET AL.

Supreme Court of Washington

August 6, 1894

Appeal from superior court, Whatcom county; John R. Winn, Judge.

Action by E. A. Turner and wife against the Bellingham Bay Lumber &amp Manfacturing Company and others to enjoin a sale under a judgment foreclosing a mechanic's lien. There was a judgment for defendants, from which plaintiffs appeal. Affirmed.

Hoyt J., dissenting.

Fairchild & Rawson, for appellants.

Dorr Hadley & Hadley, for respondents.

STILES J.

In a suit to foreclose a lien for materials furnished for the building of a house, the principal respondent in this action made the appellant E. A. Turner a party defendant, but did not make his wife a party. The lien notice and the complaint alleged E. A. Turner to be the owner of the land against which the lien was claimed. The answer admitted that Turner was the owner of an "interest" in the land, but denied that he was the "owner" of it. The case was tried by a jury, which found specially that he was the owner. Whether it was suggested at the trial that he was a married man or not does not appear. The lien was foreclosed, and the property ordered sold; and now come husband and wife, and in this action seek to have the sale enjoined, upon the sole ground that the wife was not made a party defendant. The land was clearly made to appear to have been acquired by the husband, after marriage, by purchase. Nothing appeared in the lien notice to show notice of the marriage relation of the Turners, as in Sagmeister v Foss, 4 Wash. 320, 30 P. 80, 744; and though one of the defendants, Whitney, alleged the marriage, as was done in Manufacturing Co. v. Miller, 3 Wash. St. 480, 28 P 1035, no issue of that kind seems to have been submitted to the jury, unless it may be supposed to have been involved in the special interrogatory, to which it was answered that E. A. Turner was the owner. There is no question of the wife's estoppel in this case, since the evidence shows that she was at all times within the jurisdiction, and that when the foreclosure action was commenced she was actually living in the house built with respondents' materials. The sole question is, does the complaint state facts which should cause the decree to be held void? The wife, under the decisions of this court, was a necessary party to the foreclosure proceeding; and, unless she was made a defendant, no judgment could be entered by the court, upon which a sale could be made that would bind a purchaser to take the property. Our practice act requires that the wife, in such a case, be made a defendant; and the general practice of courts is, and always has been, wherever proceedings were taken under which the title of real estate would be changed as a result thereof, to require all parties whom the record showed were interested in...