39 Wash. 45 | Wash. | 1905
On February 27, 1903, one Williams, as plaintiff, began an action in the superior court of King county, against D’Arcy Kirk and Emma Kirk, his wife, Albert M. Ewing and Lottie Ewing, his wife, and Olaf Olson, as defendants, to foreclose certain mechanics’ liens on a leasehold interest, held by D’Arcy Kirk and Albert M. Ewing, in lot 12, of block “G,” of A. A. Denny’s addition to the city of Seattle. In his complaint the plaintiff alleged that there was a balance due him from Kirk and Ewing in the sum of $3,389.50, and that for such sum the liens set forth in his complaint were liens on the property above described, superior to the claims and interests of the defendants and each of them.
Immediately after the action had been commenced, the
The matter rested in this condition until about August 20, 1903, when the plaintiff, Williams, sold and assigned all of his interests in the action, and the claims and demands mentioned therein, to Charles H. Burnett, Jr., who was thereupon substituted as the plaintiff. On November 2, 1903, Burnett moved for judgment on the'pleadings, which motion was duly served on Kirk and Ewing, and noted on the motion calendar. Thereupon the defendants Ewing and wife applied to the court for leave to file a supplemental answer, tendering the answer along with the application, supporting it by an affidavit to the effect that the allegations therein contained were true. This answer, .in substance, alleged that Burnett was not the real party in interest, but was the agent and trustee of the defendant Olaf Olson; that Olson had in fact purchased the liens, and that Burnett was holding them for his use and benefit; that Olson and the answering defendants held the leasehold in
The court refused to permit the answer to be filed, and entered judgment finding that the defendants were indebted to the plaintiff for the full amount stated to be due in the liens, and decreeing that the liens be foreclosed, and that the interests of all the defendants, except Olaf Olson, be sold to satisfy the amount found due thereon. The defendants Ewing and wife appeal from the judgment.
The respondent first objects that the appellants are not entitled to be heard to question the order of the court refusing to permit them to file their supplemental answer, because they did not except to the order. But the order was one embodied in a written order and journal entry in the cause, and was a self-excepting order, under Bal. Code, § 5051. No formal exception was necessary to make the order reviewable in this court.
It is next urged that the answer itself is incomplete and insufficient, in that it does not set out with particularity and fullness the matters sought to be alleged. But this is not a reason for denying the appellants the right to answer at all. Doubtless, if the answer did not conform to the rules of good pleading, it would have been proper for the respondent to have moved against it after it was filed in the cause, but inasmuch as it contained the substance of a
It is said, however, that the answer does not even contain the substance of a good defense. We think it does. If it be true that Olson is a tenant in common with the appellants, in the ownership of the leasehold interest, he cannot buy up the outstanding incumbrances on that interest and foreclose them against his cotenant; at least, not without some allegation showing that his cotenant is liable for the whole amount of such incumbrances and that he is not liable for any part of the same. No such showing appeared here. So far as the record discloses Olson’s interests in the common property were subject to these liens. True, counsel in their brief have made a case for him, but we find in the record no support for the case made in the brief.
But, if there were no merit in this branch of the case; the second defense stated in the answer required that the court permit it to be filed. It was there alleged that a part payment had been made on the amount due on the liens, which had not been credited thereon. By the express terms of the agreement entered into at the time the action was commenced, the appellants were entitled to have all sums so paid credited on the liens prior to the entry of judgment thereon, and the answers originally filed did not amount to a waiver of the right of the appellants to enforce this part of the agreement.
With regard to the note assigned as additional security, the appellants could have the amount thereof credited on the lien indebtedness only in case the note had been paid, or the assignee had converted it to his own use. The answer does not make it clear whether either of these conditions had occurred at the time the answer was tendered, and is defective in that respect. . However, it can be corrected, if moved against, after leave to file is granted.
The judgment appealed from is reversed, and the cause