12 Wash. 335 | Wash. | 1895
The opinion of the court was delivered by
Preceding the argument upon the merits, a motion was made to strike the statement of facts on the ground that the law had nqt been complied with as to the time of its filing. The decree was renderéd on the 31st of May, 1894. Appellant served notice on
“Provided, That the time herein prescribed may be enlarged either before or after its expiration, once or more, but not for more than sixty days additional in all, by stipulation of the parties, or, for good cause shown and on such terms as may be just, by an order of the court or judge wherein or before whom the cause is pending or was tried, made on notice to the adverse party. And the certifying of a bill of exceptions or statement of facts provided for by this act, and the filing and service of the proposed bill or statement,’ the notice of application for the settlement thereof, and all other steps and proceedings leading up to the making of the certificate, shall be deemed steps and proceedings in the cause itself, resting upon the jurisdiction originally acquired by the court in the cause, and no irregularity or failure to pursue the steps prescribed by this act on the part of anj7 party, or the judge, shall affect the jurisdiction of the judge to settle or certify a proper bill of exceptions or statement of facts.”
It is first contended by appellant that his time within’ which to serve and file the statement had not commenced to run, in consequence of the failure upon the
Appellant further contends that the specific requirements of the first part of the section, relating to the time within which the statement must be filed, and to the time and manner of its extension upon notice to the adverse party, etc., must be held to be directory only, in view of the remainder of the section. The language of the section in these particulars is contradictory. The first requirements, with reference to the manner of the extension of the time, and service of notice upon the respondent of the application therefor, are specific and certain,‘and no stronger language could well be employed were it the intention of the legislature to make these provisions mandatory. The remainder of the section, however, expressly provides that no failure to pursue any of the steps pointed out with reference to the filing, service, and settlement of the statement of facts shall prevent the court from settling and certifying a proper statement; and the question to be determined is, what was the real intention of the legislature in enacting this law? It seems to us that it lies between the two provisions, or, in other words, that the appellant must serve upon the respondent notice of the application for an extension of time for filing and serving a statement of facts, unless he can show good, and valid reasons for not having done so; but if, upon the other hand, the appellant should be prevented, through no fault of his own, from serving such notice, and had diligently and in good faith sought to prosecute his appeal, and to comply with the
Certain questions, based upon the pleadings and records remaining, are, however, to be determined. The action was brought to foreclose a number of liens upon several lots or quantities of logs for labor performed by various persons, which claims had been assigned to the plaintiff, and also'to foreclose two chattel mortgages upon the logs in question. It did not appear that each lien covered all of the logs, and it was contended by appellant that there was a misjoinder of the causes of action. Without going into the details of the argument urged in this particular, it is sufficient to say the complaint alleged that appellant had some interest in the logs upon which the various liens were claimed. Although his interest was not specifically set forth, we are of the opinion that this allegation was sufficient as against appellant’s general 'demurrer. The fair import of it was that appellant claimed some interest in all the logs in controversy. It transpired upon the trial that he was the purchaser of said logs, and, while this of itself did not appear by the com
Another question raised by appellant relates to the causes of action pleaded in the complaint, commencing with the seventh and ending with the fourteenth. It is insisted that, as to these causes of action, the suit was not commenced in time, and appellant demurred thereto upon that ground. These causes of action relate to the lien claims of Fred Shoenfeldt, Philip McDonald, Robert Logan, J. W. Atkinson, William Sanders, William Dorey, and John O’Neill, and were for the foreclosure of liens, notices of which were filed prior to the passage of the act of March 15, 1893 (Laws 1893, p. 428), which went into effect June 7, 1893, and was a general law covering the entire subject, and expressly repealed all prior inconsistent laws. This action was commenced in December, 1893, and more than eight months had elapsed since the filing of these lien notices, and more than eight months since the passage and approval of the act in question. Under the law in force at the time the lien notices were filed the lien claimants had twelve months within which to commence suit to enforce the same. Under the new law, the .period within which actions could be commenced was limited to eight months. Respondent claims that the provision of the old law as to the time of the commencement of actions to foreclose
A further question relates to the costs allowed be
The judgment will be reversed as to the causes of action aforesaid from the seventh to the fourteenth, inclusive. It will be affirmed as to the other causes of action set forth, but modified as to the costs taxed, by striking the items of $15 and $40.60, allowed the plaintiff for preparing and serving copies of the pleadings. Remanded accordingly.
Dunbar, Anders and Gordon, JJ., concur.
Hoyt, G. J., not sitting.