27 Wash. 702 | Wash. | 1902
This action was brought by John Duggan, in the superior court of Cowlitz county, against W. C. Smith, the appellant, also H. A. Smith, B. F. Smith, and James Muckle, to foreclose a lien upon certain saw logs for the value of services alleged to have been performed in cutting and hauling the logs liened upon. Demurrers to the complaint were filed by all the defendants except appellant. These demurrers were sustained in the lower court, and the action dismissed as to all the defendants except the appellant. The action proceeded against appellant, and a decree was entered foreclosing the lien in question and ordering sale of the logs described in the lien. Appeal is prosecuted from this decree.
Respondent moves to dismiss the appeal upon the ground that the decree appealed from has been satisfied and the controversy has ceased to exist. It appears that, when the appellant filed his answer to the plaintiff’s complaint, he admitted an indebtedness to the plaintiff of $106.94. He alleged a tender and refusal prior to the commencement of the action. At the time this answer was filed, in order to make the tender good, the appellant deposited the $106.94 with the clerk, for the use of the plaintiff, “in case a decree should be rendered therein establishing any lien upon the logs in the complaint mentioned.” After the decree the court, without the consent or knowledge of appellant, applied the money so deposited upon the judgment pro tanto. Appellant thereafter filed a motion requiring plaintiff to satisfy the judgment. This motion was resisted by respondent and denied by the court, A substantial judgment is still standing unsatisfied. An actual controversy still exists. Watson v. Merkle, 21 Wash. 635 (59 Pac. 484). Cases cited in support of the motion are not in point. The motion is denied.
The evidence is not brought here on this appeal. Appellant relies upon the findings made by the lower court
This court, in McQuesten v. Morrill, 12 Wash. 335 (41 Pac. 56), held that an allegation in a complaint that appellants had some interest in the logs, as against a general demurrer, was good, because this allegation fairly included ownership. (The statutes relating to liens upon logs do not provide that liens may he foreclosed without making the owner of the logs a party) On the other hand, it provides, in the form prescribed for lien notices, that the name of the owner or reputed owner shall he stated. It certainly, was not intended that the court should cause the property of some person not a party to the action to he sold to pay the debt of another, without giving such person an opportunity to defend. In this case one of the owners of the logs had been made a party. He appeared in the action and was
The cause will be reversed, with directions to the lower court to set aside the decree entered and to hold the cause for trial before a jury upon the personal liability of the appellant; the costs of this appeal to be awarded to the appellant.
Reavis, C. J., and White, Anders, Hadley, Fullerton and Dunbar, JJ., concur.