61 Wash. 180 | Wash. | 1910
Appeal from a decree establishing and directing the foreclosure of a materialman’s lien. The errors assigned are insufficiency of the notice, variance between the pleading and the proof, and that the work was not lienable.
The material was furnished by respondent to Wallace, who, under contract with appellant, built a balcony floor in the building owned by defendant Maud and of which appellant was lessee for a term of years. The notice states that the material was furnished to Wallace, agent for Maud, the owner, and was used in the construction and erection of the building, and
“That said W. & J. Sloane Company, a corporation, has or claims to have some interest in or lien upon the said premises, the exact nature of which this claimant is ignorant, but such interest or claim, if any, is subsequent, junior, subordinate and inferior to the rights and lien of this claimant.”
The complaint, in so far as here material, is substantially the same as the notice. Wallace defaulted, and defendant Maud and appellant answered, denying the allegations of the complaint, and setting out the interest of appellant as that of lessee. Upon the trial, which was more than ninety days after the furnishing of the material, the court permitted the complaint and notice to be amended. The nature of the amendment is thus referred to in the findings of fact:
“That after the introduction of the testimony, the court permitted the plaintiff’s lien to be amended so as to be a lien upon the leasehold interest held by the said W. & J. Sloane Co., and also permitted the amendment of the complaint to be made accordingly.”
It then entered its decree establishing the lien against the leasehold estate of W. & J. Sloane Company, and providing for its foreclosure, and the company appeals.
The defect in the notice, claimed by appellant, is the failure to refer to the lease of Sloane Company, or to claim a lien upon the leasehold estate. This, appellant suggests, was not cured by the amendment, and that the amendment came
“If this provision authorizing amendments does not allow an amendment to be made after the time for filing the lien has expired, then it would just as well never have been written. ... So long as a party’s time for filing a mechanic’s lien had not expired, he could file as many statements in his effort to make a good lien as he chose.”
See, also, Blanshard v. Schwartz, 7 Okl. 23, 54 Pac. 303; Real Estate & Imp. Co. v. Phillips, 90 Md. 515, 45 Atl. 174; Thirsk v. Evans, 211 Pa. St. 239, 60 Atl. 726.
Neither was there a fatal variance. Under our practice no
The judgment is affirmed.
Rudkin, C. J., Dunbar, Crow, and Chadwick, JJ., concur.