2 Wash. 165 | Wash. | 1891
The opinion of the court was delivered by
— Five plaintiffs — J. M. Sparkman, D. A. McDonald, William Bieehers, William Kemery, and W. B. Morris — joined in an action to foreclose laborers’ liens on certain lumber and shingles, situated at the saw-mill of the Builders’ Material Company, in Kitsap county. The Builders’ Material Company was made a party to the action, and ivas served with process, but it made no appearance-Dexter Horton & Co., bankers, a corporation, appeared, and demurred to the complaint and each of the separate causes of action therein stated, on the ground that no cause of action was stated. Copies of the several liens were annexed to and made a part of the complaint. The action was brought under § 1947 of the code. Each of the liens Avas in substantially the folloAving form:
“ Notice is hereby given that--, of Kitsap county, Washington state, claims a lien upon all lumber, being about 100,000 feet, which was manufactured in Kit-sap county, Washington state, and which is marked thus -; and is now lying at the saiv-mill OAvned by said Builders’ Material Co., in Kitsap Co., the same being the place where said lumber was manufactured, and situated about tAVO miles south of Port Blakely, on Puget Sound, for labor performed upon and assistance rendered in manufacturing lumber.” (Other clauses followed.)
We are of the opinion that this description was sufficient, as against the objection of appellants that the place was
The notice of William Kemery alleged his own claim of §32.50, with an offset of §20.80; and it also alleged that the Builders’ Material Company was indebted to G. M. Kemery in the sum of §51.25, with an offset of §33.42, which indebtedness had been assigned to claimant. William Kemery claimed a lien for both balances in the gross sum of §29.63. This he could not do. The lien given by statute is personal to the laborer; it does not run with the chose in action. Having perfected his lien, and thus entitled himself to the equity, an assignment of the debt might entitle the holder to the enforcement of the security thus obtained. There has been much discussion and diversity of opinion among courts and writers on this subject of the assignment of claims and the right of assignees to perfect liens to secure them; but we think the rule announced is the better one under our present statute. Having confused the two demands, plaintiff failed to comply with the statute, and lost all right to take benefit of the foreclosure.
The lien of J. M. Sparkman was like the others, excepting it was for labor in manufacturing the' 100,000 feet of lumber and 300,000 shingles, at wages of §3 per day for
The claim of W. B. Morris was verified by P. A. Ells-worth, to the effect that he believed it to be true. The statute seems to require no statement by the person verifying an instrument of this kind for another of the facts upon which he bases his belief, and lays down a form which may be used. We think the verification was sufficient.
The appellant, after the overruling of its demurrer, in the court below, filed an answer specifically denying the allegations of each cause of action stated in the complaint, and setting up that the shingles made by the Builders’ Material Company were cut and sawed from shingle bolts made by other parties than the plaintiffs. The plaintiffs filed no reply to the new matter, and defendant moved for judgment on the pleadings. The court denied the motion, and, we think, properly, except as to the claim of Spark-man. It is true that in his complaint, each of the plaintiffs alleged that he had filed a lien upon all the lumber and shingles at the mill, but the copy of his lien, filed as a part of the complaint, showed how far this was untrue j and, in the absence of any motion to correct the pleadings, that part referring to shingles was to be disregarded on a motion for judgment.
Immediately upon the disposal of the defendant’s motion
The judgment was also erroneous in that it awarded liens to all the plaintiffs upon the shingles, whereas only the lien of Sparkman mentioned shingles. The judgment is therefore reversed, with instructions to the court below to sustain the demurrer to and dismiss the complaints of William Kemery and J. M. Sparkman, and to set down for trial and try the cause involving the other parties. Costs to appellant.