19 Wash. 697 | Wash. | 1898
The opinion of the court was delivered by
-The respondents move to dismiss this appeal upon.the grounds that the appeal was not taken in accordance with the statute, and that this court has therefore no jurisdiction of the subject matter. The particular objection is that the defendant J. J. Bell was not served with notice of the appeal; but it appears from the record that he never in any way appeared in the action, and therefore no service of the notice upon him was required. The motion must be denied.
This action was brought by the appellant, Teresa Eldridge, to enjoin the respondent John H. Stenger from further proceeding in an action in the superior court of What-com county to foreclose a mortgage executed by Hugh Eldridge and Edmund Cosgrove and wife to the respondent Stenger in June, 1892, upon certain real estate in What-com county, described as all that part of the east half of the Edward Eldridge donation claim lying west of Squalicum creek, to which action appellant was not made a party, and to restrain said respondents from asserting any interest in or to said premises. Other parties were joined as defendants in this action, but they all defaulted, the Stengers be
Several errors1 are assigned and relied on by the appellant, but, in our view of the case, it is only necessary to consider two questions. The first is whether the respondent Stenger had notice of the appellant’s title to, or interest in, the mortgaged premises at the time he received his mortgage, and the second is as to the effect of the filing of the notice of lis pendens in the foreclosure action. The court found as a fact that the defendant John U. Stenger had no notice of the existence of the deed to the plaintiff prior to its filing and recording in the auditor’s office, and, prior to that date, had no knowledge that the plaintiff, Teresa Eldridge, had or claimed any right or interest in or to the premises in controversy. The appellant duly excepted to this finding, and it therefore becomes the absolute duty of this court, under the statute, to examine the evidence upon that proposition de novo, and to determine the fact in accordance wtih the record. It is strenuously contended by counsel for the appellant that this finding of the court is
This brings us to the remaining question, which is, what was the effect of the notice of lis pendens which was filed in the foreclosure suit on FTovember 13, 1894? The notice which was filed contained a statement of all the facts required by the statute. The counsel for appellant objects to the consideration of the notice for the reason that it was signed by the plaintiff’s attorneys and not by the plaintiff. While the statute provides that the plaintiff in a proper action may file such notice, we think the common practice is, and has been, for the notice to be signed and filed in fact by the attorney of the party desiring to file it. See Estee’s Pleadings, title Lis Pendens. Our statute (Laws 1893, p. 413) provides that
“ From the time of the filing only shall the pendency of the action be constructive notice to a purchaser or encumbrancer of the property affected thereby, and every person whose conveyance or encumbrance is subsequently executed or subsequently recorded shall be deemed a subsequent purchaser or encumbrancer, and shall be bound by all proceedings taken after the filing of such notice to the same extent as if he were a party to the action.”
It will be borne in mind that the notice in this instance was filed prior to the recording of appellant’s deed, and it is insisted by counsel for the respondents that this statute precludes the appellant from claiming any interest in the premises in dispute. It is asserted that under the statute the plaintiff cannot occupy any 'attitude other than that of a subsequent purchaser, and that is manifestly true;
Eor the foregoing reasons the judgment is reversed and the cause remanded, with directions to enter a decree in favor of the plaintiff enjoining the respondents from selling or offering for sale the premises described in the complaint, or from asserting any right or title in or to said premises by virtue of the mortgage aforesaid.
Dunbar, Gordon and Reavis, JJ., concur.