Powell v. Nolan

27 Wash. 318 | Wash. | 1902

Lead Opinion

The opinion of the court was delivered by

White, J.

This is an action to foreclose liens under the mechanic’s lien law (§§ 5900-5918, Bal. Code). At the time the action was brought and final decree entered, and at the time the building contracts were entered into, the material furnished, and work done, the real estate on which the buildings were erected was the community property of James Nolan and Susan Nolan. It consisted of the east half of lots 1 and 2, the south thirty feet of the east half of lot. 3, and lots 4, 5, and 6 in block 22, Wolverton & Conlan’s Addition to Spokane Falls. F. M. Powell verbally contracted with the community for the erection and construction of a dwelling house on the east half of said lots 1 and 2 and the south thirty feet of said lot 3. The contract price was $800. He furnished extras to the amount of $120.20. He was paid on account $617.50. His lien was for $302.75. He never personally performed any labor on the house. He superintended its construction, and selected and contracted for the material. He paid for all the labor and material, except the claim for materials of the Holland-Horr Mill Company, amounting to $235. He requested the community to pay this claim, and deduct the amount of the same from the amount due him. This the community failed to do. It was agreed between the community and Powell, on January 16, 1900, that there was due to Powell on the contract price of $800 the sum of $302.75. Powell made the contract on the 20th and commenced the erection of the house on the 23d day of September, 1899, and completed his contract on the 23d day of December, 1899. On the 23d day of October, 1899, the community executed a mortgage for $1,000, in favor of the Pennsylvania Mortgage Investment Company, on the south forty feet of said lot 4 and the north twenty-feet of said lot 3. This action was brought February 28, 1900, by F. M. Powell against Susie A. Nolan, James nolan and the Pennsylvania Mortgage Investment Company, as defendants. The original complaint is not in the record. On April 17, 1900, an amended complaint was filed by Powell. In this complaint P. J. Dullanty and the Holland-Horr Mill Company were joined with the other defendants as defendants. All that is alleged in the amended complaint as to the interest of all of the said defendants is that they have or claim to have some interest in, claim to, or lien upon the premises, or some portion thereof, which interest, claim, or lien, if any they or either of them have, is subsequent, subject, and .inferior to the lien of Powell. Proof as to the service of the original complaint and summons is by the -affidavit of one Charles Grant attached to the summons, and is to the effect “that, on the 1st day of March, 1900, in the city and county of Spokane, state of Washington, he served the attached summons upon defendant Susie A. Nolan by delivering to and leaving with her personally a full, true, and correct copy of said summons, together with a full, true, and correct copy of the complaint in said action; that at said time and place he served the attached summons upon defendant James Nolan by delivering to Susie A. Nolan, wife of said James Nolan, and a person of suitable age and discretion, at the usual place of residence of said James Nolan, a full, true, and correct copy of the complaint in said action, said James Nolan not being at his said residence at the time of the said service.” At the same time proper service was had on the Pennsylvania Mortgage Investment Company. Proof of service of the amended complaint on James Nolan is by the affidavit of one Grant attached to the amended complaint, and is as follows:

“That on April 18, 1900, in the city and county of Spokane, state of Washington, he served the foregoing amended complaint upon defendant James Nolan by delivering a full, true, and correct copy thereof to Susie A. Nolan personally at the usual place of residence of said James Nolan, she being the wife of said James Nolan, and a person of suitable age and discretion, said James Nolan not being at his said residence at the time of said service.”

On the 29th of September, 1900, on motion of F. M. Powell, the default of James Nolan, for want of an answer to the amended complaint, was entered. On May 29, 1900, P. J. Dullanty filed what purports to be an answer and cross-complaint. In this answer and cross-complaint, to which is attached a summons in the usual form, Rebecca S. Robinson and - McDaniels are made parties defendant, in addition to the defendants in the amended complaint. The record fails to show any service of the summons or cross-complaint of Dullanty on James Rolan. The court finds as a fact due and regular service of the summons and cross-complaint of Dullanty on James Rolan. There is no exception to this finding. On November 3, 1900, the Holland-Horr Mill Company filed what purported to be an answer and cross-complaint, to which was attached a summons in the usual form. The record fails to show any service of this answer, summons, or cross-complaint on James Rolan. McDaniels never appeared in the action. James Rolan never appeared. All the others named did appear. Issues were framed and joined by cross-complaints, answers, and replies between the parties who did appear. During the progress of the trial it was developed that on the 17th of October, 1900, Dullanty assigned his claim to John H. Griffith and George H. Hughes, partners under the firm name of the Griffith Heating & Plumbing Supply Company. During the trial a motion was made by Dullanty, Griffith and Hughes, that the firm of Griffith Heating & Plumbing Supply Company be substituted as the successor of Dullanty. This motion was granted over the objection of the appellants. Dullanty’s claim was for plumbing work and materials upon four houses, — one on lot 6, another on lot 5 and part of lot 4, another on part of lot 4 and part, of lot 3, and another on the east half of lots 1 and 2, of said block 22. The community contracted with Dullanty to pay the reasonable worth of said materials and work. The work was done and materials furnished between August 24 and December 30, 1899. The amount of the claim on the four houses was $1,212.74. The said amount was distributed as follows: First house, $254.78; the second house, $306.05; the third house, $311.05, and the fourth house, — on which Powell and the Holland-Horr Mill Company claimed a lien, — $340.86. The lien notice of Dullanty covered only houses 2, 3, and 4. The Holland-Horr Mill Company’s claim was for $235, a balance for materials furnished Powell and used in the construction of the fourth house. Rebecca S. Robinson claimed a superior lien for $1,200 by reason of a mortgage executed by the community, of date December 29, 1900, on said lot 5 and the north ten feet of said lot 4, part of the property on which Dullanty claimed a lien. It developed on the trial that Dullanty had included in his lien an item of $135 for laying water pipe for the four houses. It appeared that Dullanty hired the work done by mechanics, and the material was furnished by material men. He was simply a contractor; he superintended the work, and selected and paid for the labor and material. The court found in favor of Powell and gave him a judgment against Susie A. Nolan and James Nolan for $325 and costs, and an attorney fee of $50, decreed the same a lien upon the real estate upon which the fourth house stood and the appurtenances thereto, and adjudged the said lien subject to the lien of the Holland-Horr Mill Company for $235. It further adjudged that on the payment of the last sum Powell should be entitled to recover $90, interest and costs, and $50 as attorney’s fee; and that said lien was'prior to the mortgage of the Pennsylvania Mortgage Investment Company and the Dullanty lien. The court found in favor of the Holland-Horr Mill Company, and gave it a judgment against Susie A. Nolan and James Nolan for $253 and costs, and an attorney’s fee of $50, and decreed the same a lien prior to the lien of all others in the action on the real estate on which the fourth house was erected and the appurtenances attached thereto. The court found in favor of the Griffith Heating & Plumbing Supply Company, gave it a judgment against Susie A. Nolan and James Nolan for the sum of $712.74, with interest and costs and an attorney’s fee of $75; and as to all said sum except $185 it was decreed that the same was a lien on the real estate on. which was erected the second, third and fourth houses, with their appurtenances, subject, however, to the lien of the Holland-Horr Mill Company and the lien of Powell, and subject to the lien of said mortgages. The decree ordered the real estate sold to satisfy the liens, and decreed that the purchasers at such sales should be let into possession, etc. The decree recites that all the defendants have been regularly served with summons and complaint and amended complaint, and that all parties to the action have been duly and regularly served with summons and cross-complaint. The court found that James Nolan was regularly served personally with personal summons and amended complaint and with the original complaint. The court also found that James Nolan had been regularly and duly served with summons and the cross-complaint- of the Holland-Horr Mill Company, within the time and in the manner authorized by law. To these two findings the appellants excepted, and the findings are assigned as error, because said findings were not based upon the testimony introduced in the cause, were not supported by the testimony introduced in the cause, were not properly or sufficiently supported by the evidence, or any part thereof, and were not admitted by the pleadings or issues joined in said cause." The appellants "assigned as error that the return did not show a valid "service of the original summons and complaint on James Nolan, and the court erred in assuming jurisdiction over the community upon the attempted service of the original complaint and summons as shown by the return thereof. They also assigned as error that the trial court erred in assuming jurisdiction over the claim of the Holland-Horr Mill Company, for the reason that said mill company had not served James Nolan with summons or cross-complaint or either, and the court had not acquired jurisdiction to give judgment thereon. The substitution on the trial of the firm of Griffith Heating & Plumbing Supply Company, and the making and signing of the decree, are also assigned as error.

The respondent Powell moves the court to strike from the files the purported statement of facts, for the reason that the same does not contain all the evidence admitted or introduced upon the trial, and for the further reason that it is necessary to include all the evidence in an equitable action, in order that the case may be tried, de novo in this court. He raises the further objection that Susie A. Nolan did not make or file any exceptions to the findings, and, so far as her appeal is concerned, the exceptions to the findings cannot be considered. The record disposes of the last objection. There are five pages of exceptions by Susie A. Nolan to the findings of fact and conclusions of law, among which are the exceptions on which many of the errors assigned are founded. The appellants filed and served a proposed statement of facts. No amendments were proposed by the respondents. When an appellant makes and files a proposed statement of facts, and no proposed amendments are filed and served, the proposed statement of facts becomes for all purposes an agreed statement of facts. § 5058, Bal. Code. When, under such circumstances, the trial judge certifies, — as in this case, — that the record contains all the material facts, the statement is conclusive on the parties on appeal. The motion of the respondent Powell is therefore denied.

There are many errors assigned in addition to those specified in the foregoing statement. Some of these will he considered further on with a statement of the facts in connection therewith. We will first dispose of the particular assignment of errors heretofore pointed out, as they go to the foundation of the judgments, and, if well taken, the final decree must he set aside. In short, the claim of the appellants is that the judgments in favor of Powell, the Nolland-Horr Mill Company, and the Griffith Heating & Plumbing Supply Company, are void so far as they affect the community property. The proposition is an important one, for:

“A void judgment is, in legal effect, no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void. . . . The purchaser at a sale by virtue of its authority finds himself without title and without redress. ... if it be null, no action upon the part of the plaintiff, no inaction upon the part of the defendant, no resulting equity in the hands of third persons, no power residing in any legislative or other department of the government, can invest it with any of the elements of power or of vitality. It does not terminate or discontinue the action in which'it is entered, nor merge the cause of action; and it therefore cannot prevent the plaintiff from proceeding to obtain a valid judgment upon some cause, either in the action in which the void judgment was entered or in some other action.” 1 Freeman, Judgments (4th ed.), § 117.

The law is well settled in this state that both husband and wife must be brought in as parties in all actions to foreclose mechanics’ liens, when the property sought to he charged with the lien is community property. Littell & Smythe Mfg. Co. v. Miller, 3 Wash. 480 (28 Pac. 1035) ; Sagmeister v. Foss, 4 Wash. 320 (30 Pac. 80, 744) ; Peterson v. Dillon, 27 Wash. 78 (67 Pac. 397).

The law provides that civil actions shall he commenced by the service of a summons, or by filing the complaint with the clerk of the court and then making service of the summons within a certain time after filing the complaint. § 4869, Bal. Code. It is further provided that a copy of the complaint must' be served upon the defendant with the summons, unless the complaint itself be filed in the office of the clerk of the court within five days after the service of such summons, in which case service of the copy may be omitted, but the summons in such case must notify the defendant that the complaint will be filed with said clerk. § 4873, Bal. Code. In this case the summones in the original action and cross actions did not contain any such notification. The manner of personal service is by delivering a copy of the summons to the defendant personally, or by leaving a copy of the summons at the house of his usual abode, with some person of suitable age and discretion then resident therein. § 4875, Bal. Code. Proof of service is, if made by the sheriff, his return; if made by any other person, the affidavit of such person indorsed or attached to the summons, or-the written admission of the defendant. In case -of- service otherwise than by publication, the return, admission, ‘or affidavit must state the time, place, and manner of service. § 4882, Bal. Code. Notices and other papers in the action may be served on the party or his attorney. If upon the party, it may be made by leaving, the papers at his residence .between the hours of six in the morning and nine in the evening, with some person of suitable age and discretion. § 4889, Bal. Code. The provisions of § 4889, supra, do not apply to the service of a summons. § 4893, Bal. Code. Proof of service of the summons can only be made in the manner pointed out by the statute. It will be observed by reference to the affidavit of service on the original summons in the action first brought by Powell that it was served on James Nolan in the city and county of Spokane, state of Washington, “by delivering to Susie A. Nolan, wife of said James Nolan, and a person of suitable age and discretion, at the usual place of residence of said James Nolan, a full, true, and correct copy of the complaint in said action, said James Nolan not being at his residence at the time of the said service.” The service of the complaint was not a service of the summons, and the return does not show any service of the summons in the original action on James Nolan. The court below was not, therefore, justified in assuming jurisdiction over the community property where the husband had not been brought into the action by the service of summons upon him. The affidavit as to the service of the amended complaint of Powell on James Nolan is entirely silent as to the service of any summons with it. James Nolan was not, therefore, so far as' appears from the record, ever served with a summons in this 'action, and was therefore never brought into the action, and, as he never appeared in the action, the court had no jurisdiction over' the community property belonging to himself and wife, so as to enter a decree affecting the same. The particular objection made by the appellants 'as to the service we do not think tenable, and,' if it hád appeared that the súmmons had -been served as the complaint Was- served, we would have held the service good. 'This is a direct attack upon'the judgment, and presumptions, as in collateral attacks, will not prevail. But we do not understand the rule, as to presumptions in a direct attack upon the judgment,' to go so far as to hold that 'facts may not be inferred from other facts appearing in the record. The service in this case shows that Susie A. Nolan was in the city of Spokane at the time of the service at the usual place of residence of James Nolan, that she was the wife of James Nolan, and that she was served at the residence of James Nolan. From these facts it is right to presume that she resided with her husband in his place of residence, for the law presumes that the wife’s domicile and place of residence are the same as the husband’s, and it may be further presumed that the residence of the husband was the house of his usual abode The record fails to show service on the husband of a summons in this action; and the service on him of an amended complaint alone, without his appearance, did not give the court jurisdiction. The return of service of the amended complaint is also incomplete because it does not show that it was left at James Nolan’s residence between the hours of six in the morning and nine in the evening, as required by § 4889, supra. No exception on this point is taken, and we do not now deem it necessary to pass upon the sufficiency of the return in this respect. We call attention to the fact so that the return may be amended if the respondent so elect. The record fails to show any service of the’ summons or cross-complaint of the Holland-Horr Mill Company on James Nolan. The Holland-Horr Mill Company assumed that James Nolan was before the court by virtue of the service upon him of a summons in the original action. We have seen that the record fails to disclose any such service. But assuming that the service of summons in the original action was actually made, and thereby James Nolan was in court, we think he was entitled to be served with a copy of the cross-complaint of the Holland-Horr Mill Company, or a summons notifying him it would be filed, and that no judgment on any demand of a defendant in a cross-complaint could be lawfully entered against him until he was so served and given the usual time to plead.

The statute relative to mechanics’ liens (§ 5910, Bal. Code), provides that in any action brought to foreclose a lien all persons who, prior to the commencement of such, have legally filed claims of liens against the same property, shall be joined as parties either plaintiff or defendant, and that no action to foreclose a lien shall be dismissed at the instance of a plaintiff to the prejudice of another party to the suit who claims a lien. It is further provided that no person shall begin an action to foreclose a lien while a prior action to foreclose another lien on the same property is pending, and if such lienor is not a party to the original action he may apply to the court to be joined as a party thereto. Where judgment is demanded by a defendant lienor and the facts constituting his cause of action are not set out in the complaint, it is proper to set the same up in his answer in the nature of a cross-complaint; and we do not think, where there had been a personal service of the summons in the original case, service of a summons on the plaintiff or on the co-defendant is necessary. Treiber v. Shafer, 18 Iowa, 29; Bevier v. Kahn, 111 Ind. 200 (12 N. E. 169) ; Cockle Separator Mfg. Co. v. Clark, 23 Neb. 702 (37 N. W. 628). But the cross-complaint, although set up in the answer, is in the nature of an original action; and, as the person whose property is affected by the lien is entitled to service of a copy of the complaint, so, too, he is entitled to the service of ,a cross-complaint; for it is through the allegations of the complaint or cross-complaint that he is informed of the nature and character of the demand against him and that it will he adjudicated, not only so far as it affects the plaintiff’s claim, but also so far as it affects the defendant owners; and it is on the facts pleaded in the complaint or cross-complaint only that the court can pronounce judgment in case of default. There is just as much necessity for a defendant lienor to plead the facts constituting his lien, and the nature of his demand, and for the service of such pleading as for the plaintiff who institutes the action to foreclose the lien to plead the facts constituting his lien and to serve his complaint. The general allegation in the complaint, that the defendants have, or claim to have, a-lien, is not such an allegation of facts as to authorize a judgment in favor of a defendant lienor against the defendant owner, and it is inserted in the complaint only for the purpose' of having the court determine the priorities between the plaintiff and defendant lienors. The supreme court of Indiana has well said:

“The only real difference between a complaint and a cross-complaint.is, that the first is filed by the plaintiff and the second by the defendant. Both contain a statement of the facts, and each demands affirmative relief upon the facts stated. In the making up of the issues and the trial of questions of fact, the court is governed by the same principles of law and rules of practice in the one case as in the other. When a defendant files a cross-complaint and seeks affirmative relief, he becomes the plaintiff, . . . .” Ewing v. Patterson, 35 Ind. 326; Board of Commissioners of Tippecanoe County v. Lafayette, etc., R. R. Co., 50 Ind. 85.

There being no service of the cross-complaint- on James Holan, and no service of a summons notifying him that it would be filed, the judgment of the Holland-Horr Mill Company, so far as it affects the community property, is invalid.

The record fails to show any service of the summons or cross-complaint of Dullanty on James Nolan. There is a finding to the effect that he was regularly and duly served with summons and cross-complaint. So far as the appellants are concerned, this must be taken as true, for they did not except to it; but if, in fact, James Nolan was not served with the summons or cross-complaint for the Dullanty demand, as we have indicated in passing on the Holland-Horr Mill Company judgment, no judgment affecting the community property would be valid.

Substitution, during the trial, of the Griffith Heating & Plumbing Supply Company as the successor of Dullanty is complained of. The assignment was a fact which occurred after the cross-complaint had been filed. The assignment was a fact which James Nolan and Susie A. Nolan, at least, had a right to controvert, and the same might affect a substantial right. The statute provides for supplemental pleadings to show facts which occur after the former pleadings are filed. § 4958, Bal. Code. Issues on such facts can only be joined on such supplemental pleadings, unless waived. The supplemental pleadings were not waived by either Susie A. or James Nolan, and the court erred in permitting'the fact of the assignment to be shown, at least as against James Nolan, for he was not served with supplemental pleadings and can not be deemed to have waived the same, and he was not present at the trial, with opportunity to controvert the assignment. If a person pendente lite becomes assignee of the interest of a party in the suit and wishes to take part in it, he must bring forward his claim by supplemental pleadings; for under § 4824, Id., the real party in interest is required to prosecute the action. The court will not permit a purchaser pendente lite to come in and take part in the proceedings in the cause without supplemental pleadings, unless by consent of the other parties to the suit. Story, Equity Pleadings (10th ed.), § 348; 21 Enc. Pl. & Pr., 38, 39; Lunt v. Stephens, 75 Ill. 507; Wilder v. Keeler, 3 Paige, 164 (23 Am. Dec. 781). The court therefore erred in entering a judgment in favor of the assignees affecting the community property.

In view of our disposition of this appeal, we now pass to the consideration of other assigned errors. The appellants demanded a jury trial, stating as a reason that the action was at common law and not in equity. The demand was denied, and on this error is assigned. This court has repeatedly held that an action to' foreclose a lien, under the law cited, is an equitable action, and for that reason has entertained jurisdiction when the amount in controversy was less than $200. Fox v. Nachtsheim, 3 Wash. 684 (29 Pac. 140). Do error was committed in refusing a jury tidal.

Certain errors are assigned relative to the admission of evidence. The admission of testimony as to work done by Powell on other houses was harmless error. On January 16, 1900, Powell and the community had a settlement, in order to ascertain how much was due on the contract, and it was found that the sum due was $302.85. A memorandum in writing to this effect was signed by Susie A. Nolan, who, in the settlement, was acting for the community. We think evidence of this fact was admissible, and that the memorandum was also admissible.

The lien claim filed by Powell March 20, 1901, sets forth that the materials furnished and the work and labor done and performed in the erection, construction, and completion of the building- and improvements were and are of the value of $920.25, of which $617.50 has been paid It further sets forth that the original contract price for the building of the house was $800, and was to be paid for in cash as rapidly as the work was done and materials furnished, and that the other' improvements consisted in the erection, construction, and completion of a fence and sidewalk and furnishing materials therefor. A bill of particulars was attached to and made part of the. lien notice. The first item in this bill was: “September 20. Contract price of house, $800.” Then followed eighteen items for extras between October 9th and December 23d. The first credit was for the sum of $100, October 7th, and the last credit was December 16th. There were seven credit items, the largest payment at any one time being $250. The memorandum of settlement heretofore referred to contained a stipulation that the money paid was to apply on the extras and the balance on the contract. We think the evidence fails to show fraud or collusion touching the settlement, and it fully sustains the demand of the respondent Powell as set forth in his lien notice,'with the exception of items amounting to about' $53.99, which was for materials and labor on another house. The mortgage of the Pennsylvania Mortgage Investment Company was made on the 23d day of October, 1899, a month after most of the extras had been furnished. It does not appear that there was any agreement, when the payments were made, as to their application in payment of any particular part of the indebtedness. At the time the mortgage became a lien, the sum of $200 only had been paid, and the mortgagee was bound to take notice that there was a prior lien in favor of Powell for at least $600 on the contract, as well as for the extras that had been furnished up to that time. § 5903, Bal. Code. Powell, in the absence of any direction from the community, had the right to apply the payment to his unsecured debt, and, as the application was made under an agreement with the community while the lien existed and before the lien notice was filed, it was binding upon the community; and the mortgagee, under the circumstances, had no right to-complain, asits security was in no way diminished or impaired by such application. The remaining amount due on the lien was less than the amount of the lien when the mortgage was taken.

It is also claimed that, because the item of-$53.99 was included in the lien notice, the entire lien must fail. The .appellants cite us to several authorities sustaining this proposition; among others to Dexter Horton & Co. v. Sparkman, 2 Wash. 165 (25 Pac. 1070) and 2 Jones on Liens (2d ed.), § 1323. In the.latter citation it is said:

“When matters for which there may be a lien are mingled with others for which no lien is given, they cannot be separated by a jury in accordance with oral evidence. It is not sufficient that the amount of the lien can be ascertained by extrinsic evidence, but the owner of the property is entitled to be informed of that fact from the account or statement of the lien filed in accordance with the statute.”

The provisions of our law relating to liens and all the proceedings thereunder are to be liberally construed. § 5917, Bal. Code. To literally apply the rule insisted upon would nullify this provision of the statute. In this case the lien notice contains a bill of particulars, the lien-able and non-lienable items can be readily ascertained by the owner, and the lienor seeks only to foreclose his lien as to one item, viz., a balance on the contract price for the erection of the house. This was clearly a lienable item. It is manifest that no fraud was attempted by the lienor in films' his lien notice. The mere fact that non-lienable items may be included with lienable items is in' itself insufficient to establish fraud and destroy the entire lien. Fraud should not be imputed where such items are included by mistake, or where the whole transaction plainly appears as in this case, or where such items are included under an honest belief that they are lienable items, although they may not be such. Under such circumstances we think it is the better rule to hold that the court may separate the lienable from the non-lienable items and render a decree of foreclosure for the amount of the lien-able items. Whittier v. Stetson & Post Mill Co., 6 Wash. 190 (33 Pac. 393, 36 Am. St. Rep. 149) ; Duggan v. Washougal Land & Logging Co., 10 Wash. 84 (38 Pac. 856) ; Peterman v. Milwaukee Brewing Co., 11 Wash. 199 (39 Pac. 452) ; Bolster v. Stocks, 13 Wash. 460 (43 Pac. 532, 534, 1099).

The admission of the Powell lien notice is assigned as error. The signature of Powell to the lien notice was proven. He produced the notice. He testified that he had filed the same. There was a certificate of the auditor, under his seal, as to the filing and recording of the instrument. We think this was a sufficient identification of the lien notice. The evidence showed that $235 of the amount claimed was for materials furnished at the request of and under a contract with, Powell by the. Holland-Horr Mill Company. This had not been paid, although the evidence showed that the community had been requested by Powell to pay it and deduct the amount from the contract price due him. At that time there was sufficient of the contract price due Powell to pay this claim. The appellants claim that because this had not been paid by Powell, he could not enforce a lien for the same. Powell was primarily liable to the Holland-Horr Mill Company, and it could look to him for payment irrespective of any lien which the law gave to it. We think, therefore, that Powell had a right to claim a lien for the amount of such material, the same as if he had furnished it directly himself. Section 5909, Bal. Code, requires, however, that there must be deducted- from the contractor’s claim lien claims for labor performed and materials furnished to him in enabling him to carry out his contract. It requires the contractor to defend any action brought to foreclose such liens at his own expense, and provides that during the pendency of the action the owner may withhold from the contractor the amount of money for which the claim is filed; that in case of judgment upon, the lien against the owner or his property the owner shall be allowed to deduct from the contractor’s claim the amount of the judgment and costs of such sub-contractor or material men; and, if that amount exceeds the amount due the contractor, he is allowed to recover the excess from the contractor. It is only in case of judgment on the lien of the laborer or material man that-the amount of the lien and costs is to be deducted from the contractor’s claim. In this case the court below gave judgment in favor of the Holland-Horr Mill Company, but did not deduct the amount of the same and cobts from the contractor’s claim. This should have been done, unless the refusal of the oymer to pay the Holland-Horr Mill Company at the request of the contractor, when the amount due the contractor' from the owner exceeded the amount due the Holland-Horr Mill Company, released the contractor from the payment of the costs. We think it did, for the owner could have prevented the costs and could have protected himself in making such payment by setting the same off against the amount due the contractor. We hold that the judgment of the Holland-Horr Mill Company is void, and that no judgment can be now entered thereon. It follows, therefore, that no part of the same should be deducted from the contractor’s claim.

The appellants claim that no lien is given to a contractor who merely superintends and oversees the work, but who does no labor upon, and furnishes no material for, the construction of the building. Section 5900, supra, gives to every'person performing labor upon or furnishing material for the construction of a building, etc., a lien thereon. Section 5904, supra, provides that within ninety days after the cessation of labor or furnishing of material, a claim for such lien shall be recorded in the office of the county auditor of the county where the building,is located. The claim shall state the time of commencement and cessation of performing labor, etc. ‘ Section 5909, supra, provides that the contractor shall recover on the claim, filed by him the amount thereof, after deducting the claim of other pan'ties for labor and material, etc. Section 5911, supra, declares that in every case in which different liens are claimed the rank of such shall be: ' (1) All persons performing labor; (2) all persons'furnishing material; (3) the sub-contractors; (4) the original contractors; and that the proceeds of the sale of the property on which the liens are foreclosed must be applied to each lien in order of its rank. If § 5900, supra, stood alone, there would be some reason to construe the law as contended for by appellants. Winder v. Caldwell, 14 How. 434; Campbell v. Sterling Mfg Co., 11 Wash. 204 (39 Pac. 451) ; Mohr v. Clark, 3 Wash. T. 440 (19 Pac. 28). The other sections of the statute which we have cited clearly indicate that a subcontractor or contractor is to be regarded as performing labor upon the building, and is entitled to file lien claims therefor the same as laborers and material men, but subordinate to such liens. Construing the' act, as we must, so as to give effect to every part thereof, we must hold that the contractor has a lien .for the contract price, irrespective of the fact that he performed no service further than overseeing the construction of the building according to his contract..

The Dullanty lien claim is against Susie A. Nolan, and her husband is not mentioned therein. The statement in the claim is to. the effect that notice is given that the claimant, at the request of Susie A. Nolan, commenced to perform the labor and furnish the material, etc. The allegation of the cross-complaint, which is sustained by the proof, is that the labor and materials were furnished under a contract with Susie A. Nolan and her husband. Because of this variance the appellants claim that the Griffith Heating & Plumbing Supply Company should have been non-suited on their motion for a non-suit. The lien claim states that Susie A. Nolan is the owner and reputed owner of the lots on which the lien is claimed. The cross-complaint alleges that Susie A. Nolan is the holder of the legal title, but that it was acquired with the community funds. We think the lien notice was sufficient. It falls within the rule laid down by us in the case of Bolster v. Stocks, 13 Wash. 460 (43 Pac. 532, 534, 1099). It is alleged in the cross-complaint that Dullanty entered into an oral contract with the community to perform the plumbing work and furnish the plumbing material on the four dwelling houses, and he was to be paid therefor what it was reasonably worth. The reasonable worth is alleged to be $1,212.15, on which $500 was paid. The amount on each house is also separately alleged in the cross-complaint and lien claim. He kept an account of the material that went into each house. For this reason appellants claim that his lien claim must be on each house separately. The contract was an entire contract-for the four houses. Section 5907, supra, provides that there may be one claim against two or more separate pieces of property, and requires the lien claim to designate the amount due on each piece of property, or it is postponed, to other liens. We think the lien claim in this case was in strict compliance with the statute. As the contract was an entire one, separate lien claims-were not required. Phillips v. Gilbert, 101 U. S. 721.

During the progress of the work $500 .was paid upon account of the contract. On September 20, 1900, before any mortgage liens had attached, in order to enable the owners to sell the first house, the owners and contractor agreed that the first house should be released from the lien thereon. We think it clear from the evidence that this release was made in consideration of the payments already made on the contract. Under an honest belief that a certain item for water pipe, amounting to $135, was a lien-able item, the same was included in the lien notice. This should be deducted pro rata from the liens on the four houses as segregated. The $500 should be appropriated to the payment, first, of the lien on the first house, and the balance to the payment pro rata of the liens on the remaining three houses, and for the balance the Griffith Heating & Plumbing Supply Company should have, judgment of foreclosure, to which thehnortgage liens should be declared subordinate. This is an equitable adjustment between the lienor, owners, and mortgagees. The release of the lien' on the first house, although .the contract was e.ntire, did not destroy the lieu on the remaining houses. Boisot,. Mechanics’ Liens, § 707; Reilly v. Williams, 47 Minn. 590 (50 N. W. 826) ; Hall v. Sheehan, 69 N. Y. 618; Meixell v. Griest, 1 Kan. App. 145 (40 Pac. 1070) ; Carr v. Hooper, 48 Kan. 253 (29 Pac. 398). For the $135, — the non-lienable item, — a personal judgment only can he entered against the community.

We are strongly impressed, .from reading the affidavit-of the service of the summons,in the original action, that by oversight there was an omission in the affidavit of service, and that the person making the .same intended to say that he served the. summons with a.copy of the complaint. If such is the fact, the respondent.Powell should be allowed to correct the-return so as to-correspond with the fact, and,-if the return.is so corrected, the court below is authorized to enter judgment of foreclosure in favor of respondent Powell for the amount claimed by him in his lien notice-, viz., $302.15, together with his costs and an attorney’s fee of $50, on that portion of the property covered by the lien claim of Powell. If such correction in the return cannot be made, the action, so far as the Powell demand is concerned, is to be dismissed at the-cost of the respondent Powell. If he so elect, he may also amend the return of the service as to the amended complaint. The statute provides that liens shall not bind the property subject to the lien for a longer period than eight calendar months, unless an action shall be commenced to enforce the lien. We have held in Peterson v. Dillon, supra, that this action must be commenced against both spouses within the time limited, or the court has not jurisdiction to enforce the lieii against the comiptinity property. The Holland-Horr Mill Company did not commence its action against James Molan by service of a summons or cross-complaint on him within the eight months, and it cannot now commence its action within that time against him. The action of the Holland-Horr Mill Company on its cross-complaint should be dismissed.

Under the statute, (§ 4837, Bal. Code), the firm of Griffith Heating & Plumbing Supply Company, successor in interest to the Dullanty claim, had one year after October 17, 1900, the time when the claim was assigned to them, in which to move the. court for leave to continue the action as successor of Dullanty. This motion was made at the trial and within the year,- The supplemental pleadings necessary to show, that it succeeded to the Dullanty interest were not filed. This is an irregularity that can be cured. The supplemental pleadings- can yet be filed and served. The respondent, the Griffith Heating & Plumbing Supply Company, should be permitted to pursue this course, and a new trial should be had as to its claim, after proper service of such supplemental pleadings, and judgment entered as the court finds the fact to be, provided there was service of the summons or cross-complaint of Dullanty on James Nolan. We have searched the record before us in vain for any proof of such service. There is a recital in the decree and a finding to that effect; but if, as a matter of fact, no such service was made, the cross action of the Griffith Heating & Plumbing Supply Company should be dismissed.

The final judgment and decree of -the court below is reversed, with, costs to appellants, and this cause is remanded to the court below for the.purpose of entering a final judgment and decree therein in conformity with this opinion.

Reavis, C. J., and Dunbar, Fullerton, Anders, Hadley and Mount, JJ., concur.

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Rehearing

On Petition for Rehearing.

White, J.

This cause is reported in 67 Pac. 712. We further say that the filing of the complaint is but a step in the commencement of an action. Service of the summons, either before or after the filing of the complaint, is necessary to complete the commencement of the action; and, if the service is by publication, after the same is completed .the action is deemed to have been commenced at the time-the complaint is filed. The mere service of a summons on one of the spouses in an action to enforce a mechanic’s lien against community -property is not the commencement of an action as to the other spouse, unless followed pp By - a. service of the summons on such other spouse personally within the time given by § 5908, Bal. Oode, or byp-ublication within the time given by §4869, Id.

The respondent Powell, sends up with his petition a correct transcript of the return of service of summons on James Nolan, from which it appears that James Nolan was duly served, .so as to confer upon the court jurisdiction over him. The failure to show-the-service of the summons in the original action was through a mistake of the clerk in transcribing the return of such service; and as this was not called-to the attention of the respondent in the brief of the appellants, or otherwise, save in the opinion herein, the judgment of the respondent Powell should be, and the same is, affirmed, subject, however, to the payment out of the proceeds thereof to the Holland-Horr Mill Company of $235, the =amount of the lien of said last mentioned company.

The Holland-Horr Mill Company sends up with its petition an affidavit of service of summons and cross-complaint in this action on James Nolan. This affidavit, while purporting to be made on the 4th of September, 1900, was not filed in the court below until March 3, 1902, after the opinion was filed in this case. It does not purport to be indorsed upon or attached to any summons as required by subdivision 2, § 4882, Bal. Code. Conceding that it states the facts, no excuse is shown for not filing this return before or at the time the action ivas tried. One of the errors assigned by the appellants was that the trial court erred in assuming jurisdiction of the lien claim of the Holland-Horr Mill Company, for the reason that the said mill company had not served James Nolan with summons or cross complaint, and the service on one of the spouses did not give the court jurisdiction,to give judgment against the community. The finding of the court that there had been such service was specifically excepted to. There was nothing in the record, as filed in this court, proving or tending to prove such service, or a service of the cross complaint. As there must be a further hearing of this case, we will allow the Holland-Horr Mill Company to file in the court below the summons in its action, with proof of service indorsed upon or attached thereto; and when this is done the court below is authorized to enter judgment in favor of said respondent for the amount of its lien, with costs and attorney’s fee of not exceeding $50. Otherwise the action as to said respondent is to- be dismissed.

It appearing from the proof of service sent up with the petition of the Griffith Heating & Plumbing Supply Company that James Nolan was duly served with summons in the action of P. J. Dullanty, what we have said in our opinion on this subject has no application, so far as service of the summons by this respondent is concerned. If the Griffith Heating & Plumbing Supply Company had not moved in the court below to be substituted for P. J. Dullanty, and had permitted . the action to proceed to judgment in the name of P. J. Dullanty, we would have affirmed the judgment, under the rule laid down in Box v. Kelso, 5 Wash. 360 (31 Pac. 973). But when a stranger to the record sets up the assignment of the claim, originally sued upon by another, and seeks judgment in his own name, a different question is presented. James Holán certainly had a right.to contest the assignment. He might have a counter claim against the assignee which he would be entitled to set up. He was unquestionably entitled to be advised as to the reasons why a stranger to the record should recover a' judgment against him. If he had been represented at the time the substitution ‘was made, as was Susie A. Nolan, supplemental pleadings might not have been necessary, but even then it would be the better practice. But not being represented, we do not see how the fact of the assignment, arising after the service of the Dullanty pleadings, should in any way bind him, unless this fact was brought to his attention by supplemental pleadings. His -default in failing to answer Dullanty’s complaint simply amounted to his consent that Dullanty might have judgment. He did not thereby consent that some one else, a stranger to the record at the time of his default, might have judgment. Under the circumstances of this case we do not think it should be dismissed for want of prosecution,- as provided in § 5908, Bal. Code:

This cause, as to the Griffith Heating & Plumbing Supply Company and as to the Holland-Horr Mill Company, is remanded to -the court below for further proceedings as herein and in the original opinion indicated. The judgment of F. M. Powell, as herein, provided, is affirmed. The said respondent to recover his costs on "this appeal. The appellants to recover costs of this appeal against the respondents, the Holland-Horr Mill Company and the Griffith Heating & Plumbing Supply Company.

Reavis, C. J., and Anders, Mount, Dunbar, Fullerton and Hadley, JJ.. concur.