No. 13062 | Wash. | Apr 19, 1916
Action to foreclose a large number of mechanics’ liens on lot 7, in block 4£, of T. Hanford’s addition to Seattle. The case is here upon the transcript, findings, conclusions and decree, which are so voluminous as to prohibit a statement of more than a bare outline. At the time the work was done, materials furnished and liens filed, covering the period from August £9, 1913, to February 10, 1914, Joseph A. McGinty and wife were the owners of the property. The work was done and the materials furnished at. their instance for the construction of two houses, one on the north half, the other on the south half of the lot. On September 30, 1914, McGinty and wife conveyed the south half of the lot to Margaret Bunn and husband; and in October, 1914,
The court made specific findings as to the time and character of service and persons served with summons, complaint and cross-complaints in each case, and a general finding that no process of any kind or nature was served upon McGinty and wife other than as in the special findings stated.
On December 22, 1914?, after all the services that were ever made had been either made personally or commenced by publication, the four cases were consolidated pursuant to stipulation signed by the attorneys for the various plaintiffs and interveners.
On February 18, 1915, Margaret Bunn and husband and Louis Bernheim appeared specially and moved to dismiss the several causes of action on the ground that they were then the owners of lot 7, had never been served with summons in any of the actions except on the cross-complaint of Arrow
No brief has been filed by any respondent in defense of the decree on the merits. Respondents City Sash & Door Company and Taylor Mill Company, on the hearing in this court, filed identical motions to strike the transcript and dismiss the appeal on the ground that no statement of facts has been brought up and no exceptions were taken to the court’s findings. There is no merit in the motions. Moreover, they were presented on only three days notice. Our rules require ten days notice. Rem. & Bal. Code, § 1733 (P. C. 81 § 1219), Supreme Court Rules 18 and 19.
No exceptions were taken to the findings. Appellants concede that they are sufficient to sustain the judgments and decree in favor of Recchio, Denny, Dally and Arrow Electric Company, but insist that they are wholly insufficient to sustain any decree establishing liens in favor of the respondents Hanson, City Sash and Door Company, Bass-Heuter Paint
The special statute limiting the life of mechanics’ liens, Rem. & Bal. Code, § 1138 (P. C. 309 § 71; Laws 1893, p. 35, § 9) declares:
“No lien created by this chapter binds the property subject to the lien for a longer period than eight calendar months after the claim has been filed unless an action be commenced in the proper court within that time to enforce such lien; . . . ”
This is not a statute of limitations. It “limits the duration of the lien.” Peterson v. Dillon, 27 Wash. 78" court="Wash." date_filed="1901-12-26" href="https://app.midpage.ai/document/peterson-v-dillon-4725214?utm_source=webapp" opinion_id="4725214">27 Wash. 78, 67 Pac. 397; Davis v. Bartz, 65 Wash. 395" court="Wash." date_filed="1911-10-24" href="https://app.midpage.ai/document/davis-v-bartz-4731129?utm_source=webapp" opinion_id="4731129">65 Wash. 395, 118 Pac. 334. The general statute governing the commencement of actions passed at the same session of the legislature (Laws 1893, p. 407, § 1) declared:
“Civil actions in the several superior courts of this state shall be commenced by the service of a summons, as hereinafter provided.”
The last quoted section was amended in 1895 (Laws 1895, p. 170, § 1; Rem. & Bal. Code, § 220 [P. C. 81 § 131]), to read as follows:
“Civil actions in the several superior courts of this state shall be commenced by the service of a summons, as hereinafter provided, or by filing a complaint with the county cleric as clerk of the court: Provided, that unless service has been had on the defendant prior to the filing of the complaint, the plaintiff shall cause one or more of the defendants to be served personally, or commence service by publication within ninety days from the date of filing the complaint.”
Unless the special statute (Id., § 1138) was, by implication, also amended by the amendment of the general statute governing commencement of actions, thus extending the life of the lien merely by filing a complaint, it is plain that the
The owner of property subject to a mechanics’ lien at the time of suit is a necessary party to an action to foreclose the lien. The proceeding to establish and foreclose the lien is, in a sense, in rent. Jurisdiction of the subject matter can only be acquired by service, actual or constructive, upon the owner of the interest sought to be subjected and within the statutory life of the lien. Littell & Smythe Mfg. Co. v. Miller, 3 Wash. 480" court="Wash." date_filed="1892-01-12" href="https://app.midpage.ai/document/littell--smythe-manufacturing-co-v-miller-4725502?utm_source=webapp" opinion_id="4725502">3 Wash. 480, 28 Pac. 1035; Sagmeister v. Foss, 4 Wash. 320" court="Wash." date_filed="1892-05-18" href="https://app.midpage.ai/document/sagmeister-v-foss-4726825?utm_source=webapp" opinion_id="4726825">4 Wash. 320, 30 Pac. 80, 744; Peterson v. Dillon, 27 Wash. 78" court="Wash." date_filed="1901-12-26" href="https://app.midpage.ai/document/peterson-v-dillon-4725214?utm_source=webapp" opinion_id="4725214">27 Wash. 78, 67 Pac. 397; Powell v. Nolan, 27 Wash. 318" court="Wash." date_filed="1902-01-25" href="https://app.midpage.ai/document/powell-v-nolan-4725152?utm_source=webapp" opinion_id="4725152">27 Wash. 318, 67 Pac. 712, 68 Pac. 389; Northwest Bridge Co. v. Tacoma Shipbuilding Co., 36 Wash. 333" court="Wash." date_filed="1904-12-21" href="https://app.midpage.ai/document/northwest-bridge-co-v-tacoma-shipbuilding-co-4726277?utm_source=webapp" opinion_id="4726277">36 Wash. 333, 78 Pac. 996; Rees v. Wilson, 50 Wash. 339" court="Wash." date_filed="1908-09-15" href="https://app.midpage.ai/document/rees-v-wilson-4728748?utm_source=webapp" opinion_id="4728748">50 Wash. 339, 97 Pac 245; Pickens v. Polk, 42 Neb. 267" court="Neb." date_filed="1894-10-16" href="https://app.midpage.ai/document/pickens-v-polk-6649422?utm_source=webapp" opinion_id="6649422">42 Neb. 267, 60 N. W. 566; Ortwine v. Caskey, 43 Md. 134" court="Md." date_filed="1875-06-22" href="https://app.midpage.ai/document/ortwine-v-thomas-7894199?utm_source=webapp" opinion_id="7894199">43 Md. 134; Hughes v. Torgerson, 96 Ala. 346" court="Ala." date_filed="1892-11-15" href="https://app.midpage.ai/document/hughes-v-torgerson-6514811?utm_source=webapp" opinion_id="6514811">96 Ala. 346, 11 South. 209, 38 Am. St. 105, 16 L. R. A. 600.
Our own decisions above cited were nearly all in cases where it was sought to foreclose liens on community property by serving only the husband within the life of the lien. It was held in all of these that the wife was a necessary party because the community of which she was a member was the owner of the property. In those cases, it was also held that service of summons on one spouse is not the commencement of an action as to the other; and in the Peterson and Northwest Bridge Company cases, it was held that the bringing in of the wife subsequent to the expiration of the lien is of no avail and confers no jurisdiction to enforce the lien. We have also repeatedly held — and the holding was inevitable — that, under the provisions of § 220 above quoted, the filing of the complaint is not the commencement of an action but only a tentative commencement, wholly abortive unless followed by personal service on one or more defendants, or by the commencement of service by publication within ninety days. “Both must exist before the action is commenced.” Deming Inv. Co. v. Ely, 21 Wash. 102" court="Wash." date_filed="1899-04-26" href="https://app.midpage.ai/document/deming-investment-co-v-ely-4724417?utm_source=webapp" opinion_id="4724417">21 Wash. 102, 57 Pac. 353; Fuhrman v.
When it is remembered that § 1138 is not a mere statute of limitations limiting the time of commencing actions, but fixes a limit to the very existence of the lien, it is palpable that no action to foreclose a mechanics’ lien can be deemed commenced until the necessary parties to its maintenance have been served either personally or by publication of summons. It would seem, also, that this must be done within the eight months of the statutory life of the lien, because jurisdiction of such parties, under the foregoing decisions, is an essential to any action “to enforce such lien” which is the kind of action which must be commenced within that time under the terms of the statute. The life of the lien, as fixed by the special statute on that subject, cannot be held to be extended for ninety days merely by the filing of a complaint within the eight months, though followed by service after the eight months but within ninety days as required by the general statute as to commencement of actions subsequently passed. No such implication is necessary, since the filing of the complaint and the service or publication of summons thereafter at any time within ninety days may both be accomplished within the eight months of the life of the lien, thus giving scope for the operation of all the provisions of the general statute, § 220, without extending the statutory life of the lien as fixed by the special statute, § 1138. Since the implication is not.necessary, we cannot indulge it. It follows that personal service must be made upon, or service by pubfication must be commenced against, such necessary parties within eight months after the lien is filed, else the court acquires no jurisdiction to enforce the lien. We have in effect so held in Rees v. Wilson, supra, and Davis v. Bartz, supra.
An examination of the transcript as to the pubfication of summons, and of the court’s findings as to the fifing of liens, complaints, and cross-complaints, and as to service thereon,
It seems to have been contended in the lower court, on the authority of Peterson v. Dillon, supra, that, because of the inherent power of the court to consolidate the several actions, such consolidation gave the court jurisdiction of all parties who theretofore had appeared or had been served in either of the actions, and that, by some sort of imputed service, the appearance of the necessary parties, McGinty and wife, in the Recchio case inured as an appearance to all the other complaints and cross-complaints. The language used in the Peterson case, however, must be confined to the facts in that case. It can only apply where the subject-matter and issues
The decree, in so far as it establishes and forecloses the liens in favor of the respondents Hanson, City Sash & Door Company, Bass-Heuter Paint Company, McHugh, and Taylor Mill Company, is reversed, and the cause is remanded with directions to modify the decree in accordance with this opinion and dismiss their several complaints and cross-complaints in intervention. Appellants may recover their costs.