Washington Iron-Works Co. v. Jensen

• Decision Date: 21 January 1892
• Citation: 3 Wash. 584,28 P. 1019
• Parties: WASHINGTON IRON-WORKS CO. v. JENSEN ET AL.
• Court: Washington Supreme Court

28 P. 1019

3 Wash. 584

WASHINGTON IRON-WORKS CO. v. JENSEN ET AL.

Supreme Court of Washington

January 21, 1892

Appeal from superior court, King county; I. J. LICHTENBERG, Judge.

Action by the Washington Iron-Works Company against T. A. Jensen and another for a personal judgment for the price of certain machinery furnished defendants for the steam-boat James E Boyden, and to establish and foreclose a lien for the amount against the vessel. Plaintiff had judgment, and defendants appeal. Affirmed.

Frederick W. Hankey, for appellants.

Thos. Burke, ( Burke, Shepard & Woods, of counsel,) for respondent.

SCOTT, J.

This action was brought early in the year 1889 in the territorial district court holding terms at Seattle, in and for the county of King, and upon the equity side of said court. The plaintiff sought a personal judgment against the defendants for the balance of the purchase price of a marine engine and boiler, and other material and labor used in the construction and equipment of a certain domestic vessel then being built at Seattle, called the "James E. Boyden." Plaintiff, further, in said action, claimed a lien upon said vessel for the said material and labor, and asked that a receiver be appointed to take charge thereof, and hold the same until the further order of the court, and asked that such vessel be sold, and the proceeds applied to the payment of such judgment. A receiver was appointed by the court, but for some reason or under some arrangement, not made known to us, the defendants were allowed to retain possession of the vessel. The defendants answered the complaint of plaintiff denying so much thereof as alleged that the plaintiff had completed its contract as agreed, or had received an extension of time for its performance, or that there had been any compromise of the differences between the parties, or that the defendants had failed in their obligations. For a counterclaim against the plaintiff's demand the defendants set up, substantially, that the plaintiff had delayed furnishing the material and services as agreed to beyond the contract time, to the damage of defendants in the sum of $3,360. To the defendants' counter-claim plaintiff replied, denying the material allegations thereof. Upon the admission to statehood the superior court of said King county became possessed of the case. The court found for the plaintiff on all the issues, and rendered a personal judgment against the defendants, and further decreed that the plaintiff had a lien upon the said vessel, but did not decree any foreclosure thereof. Defendants took an appeal to this court.

So far as this action involves a decree of lien or foreclosure of the same, the right to such relief is given by chapter 136 Code Wash. 1881. Section 1939 provides for liens upon steamers, vessels, etc., for certain services, materials, and labor. Section 1940 provides that such liens shall be enforced by a civil action. It was conceded that the contract upon which this action was brought was not a maritime contract, and that, if the respondent has a lien or a remedy for its foreclosure, the same must be derived from the force of the statute relating to contracts or services not maritime in character. The appellants contend that, as the liens given by this chapter are secret liens, without any provision for record, or for manual retention or seizure of the thing sought to be charged, the legislature had no power to create them, and that they should be held void as against public policy; that the statute does not provide any course of procedure for enforcing such liens except "by a civil action in any district court in this territory;" that this vague direction of the statute is not aided by any form of proceeding provided for in the ordinary civil procedure under the Code, and presents the anomaly of a right without a remedy. Furthermore, that the trial court, sitting as a court of equity, had no jurisdiction of the subject-matter of this action, as the lien, if any existed, was purely the creature of the statute, with no provision for an equitable foreclosure, and that it could only be enforced in an action at law, if at all. As to the first proposition, it is well settled that the admiralty jurisdiction of the courts of the United States does not extend to cases where a lien is claimed by the builders of a vessel for work done and material furnished in her construction, or for fitting her with engines, boilers, or other machinery, which enter into her construction when she is built, although the general maritime law of the world gives a lien therefor. In most of the states, construction and home port liens have been given by statutes, the same being intended to remedy the deficiency in the admiralty law of the United States, and restore the privileges given by the general maritime law as it exists in other commercial countries. The jurisdiction of the state courts and of admiralty supplement each other; the jurisdiction of the state courts terminating where the national jurisdiction begins. That the legislature has power to create such liens has been generally recognized, and is well established. Although there is no provision for recording such a lien, or any special provision authorizing and requiring a seizure of the vessel upon the inception and during the pendency of the proceedings, this would not afford sufficient ground for holding our own legislation upon that subject void under all the circumstances. It might have some bearing upon the operation thereof in particular cases, where the rights of third parties should intervene, but there is no such question in this case. Now as to the remedy. Appellants insist very strongly that the lien, being purely legal in character, cannot be enforced in a court of equity, because there is no statutory provision authorizing such a foreclosure, and they cite a number of authorities to the end that there is no relief to be had in equity in such cases; but we do not think these authorities are applicable under our legislation and practice. The statute says that the same shall be enforced by a civil action. Section 2 of said Code provides that "there shall be in this territory hereafter but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be called a 'civil action."' Sections 73 and 74 are as follows: "Sec. 73. All the forms...