City Sash & Door Co. v. Bunn, 90 Wash. 669, 156 Pac. 854 (1916).

                CITY SASH & DOOR CO. v. BUNN.           669
 Apr. 1916                    Syllabus.

           [No. 13062. Department One. April 19, 1916.]
      CITY SASH & DOOR COMPANY et al., Respondents, v.
               MARGARET BUNN et al., Appellants. «1»

 670    CITY SASH & DOOR CO. v. BUNN.
                     Opinion Per ELLIS, J.           190 Wash.

shall be commenced by the service of summons; although that act
was amended (Rem. & Bal. Code, SS 220) to provide that civil
actions shall be commenced by the service of summons or the filing
of a complaint, provided that unless service is had before filing
the plaintiff shall cause one or more of the defendants to be
served personally or commence service by publication within ninety
days from the date of filing the complaint, there being no
implication that the special statute was amended by the amendment
of the general statute.

SAME - FORECLOSURE - CONSOLIDATION - EFFECT - PROCESS -
NECESSITY. The consolidation of actions to foreclose mechanics'
liens confers no jurisdiction of cross-complaints or complaints in
intervention setting up independent causes of action, unless such
claimants serve process upon necessary parties to the action
within the time limited for the duration of the lien.

Appeal from a judgment of the superior court for King
county, Humphries, J., entered May 11, 1915, upon findings
in favor of the plaintiffs, in consolidated actions to foreclose
mechanics' liens, tried to the court. Reversed.

George L. Palmer and Beechler & Batchelor, for appellants.

Jas. A. Dougan, for respondent City Sash & Door Company.

Reeves Aylmore, for respondent Taylor Mill Company.

                CITY SASH & DOOR CO. v. BUNN.               671
 Apr. 1916               Opinion Per ELLIS, J.

the north half to Louis Bernheim. Originally, four actions
were instituted, numbered and entitled on the records of the
superior court for King county as follows: Cause No. 97635,
Recchio v. McGinty et al., to foreclose a lien on all of lot 7.
In this case, cross-complaints in intervention were filed by
Charles Denny and S. W. R. Dally. Cause No. 99669,
Hanson v. McGinty et al., to foreclose a lien which, also, covered
all of lot 7. Cause No. 99054, City Sash & Door Company
v. McGinty et al., to foreclose a lien upon the north half of
lot 7. In this case, a complaint in intervention was filed by
Bass-Heuter Paint Company to foreclose a claim of lien on
the entire lot. Cause No. 99056, City Sash & Door
Company v. McGinty et al., to foreclose a claim of lien on the
south half of lot 7. Four cross-complaints in intervention to
foreclose claims of lien were filed in this case, one by D. J.
McHugh covering the south half of lot 7; the second, by
Taylor Mill Company, originally covering the north half of
lot 7 but amended at the trial to cover the south half of the
lot; the third, by Arrow Electric Company covering the
entire lot; the fourth, by Bass-Heuter Paint Company covering
the entire lot.

The court made specific findings as to the time and
character of service and persons served with summons, complaint
and cross-complaints in each case, and a general finding that
no process of any kind or nature was served upon McGinty
and wife other than as in the special findings stated.

On December 22, 1914, after all the services that were ever
made had been either made personally or commenced by
publication, the four cases were consolidated pursuant to
stipulation signed by the attorneys for the various plaintiffs and
interveners.

On February 18, 1915, Margaret Bunn and husband and
Louis Bernhelm appeared specially and moved to dismiss the
several causes of action on the ground that they were then
the owners of lot 7, had never been served with summons in
any of the actions except on the cross-complaint of Arrow

 672    CITY SASH & DOOR CO. v. BUNN.
                     Opinion Per ELLIS, J.           90 Wash.

Electric Company, and that none of the actions, either by
complaint or cross-complaint, had been commenced within
eight months after the filing of the respective claims of lien.
The motion was denied, and Bernheim and the Bunns were
made additional parties defendant to all of the complaints
and complaints in intervention, over their objections. This
was long after the expiration of eight months from the filing
of any of the lien claims. Thereupon the Bunns and
Bernhelm filed separate answers, setting up substantially the same
facts as advanced on their motions. After trial, the court
made findings of fact and conclusions of law, and thereon
entered personal judgments against McGinty and wife for
the amounts found due to each of the respective lien
claimants, and a decree establishing as valid all of the liens
claimed, and ordered sale of the two half lots and the
buildings thereon to satisfy the liens so established against each
half respectively, surplus, if any, of the proceeds of the north
half to be paid to Bernheim and of the south half to the Bunns.
The defendants Margaret Bunn and husband and Louis
Bernheim appeal.

No brief has been filed by any respondent in defense of the
decree on the merits. Respondents City Sash & Door
Company and Taylor Mill Company, on the hearing in this court,
filed identical motions to strike the transcript and dismiss the
appeal on the ground that no statement of facts has been
brought up and no exceptions were taken to the court's
findings. There is no merit in the motions. Moreover, they were
presented on only three days notice. Our rules require ten
days notice. Rem. & Bal. Code, SS 1733 (P. C. 81 SS 1219),
Supreme Court Rules 18 and 19.

No exceptions were taken to the findings. Appellants
concede that they are sufficient to sustain the judgments and
decree in favor of Recchio, Denny, Daily and Arrow Electric
Company, but insist that they are wholly insufficient to
sustain any decree establishing liens in favor of the respondents
Hanson, City Sash and Door Company, Bass-Heuter Paint

                CITY SASH & DOOR CO. v. BUNN.           673
 Apr. 1916               Opinion Per ELLIS, J.

Company, McHugh and Taylor Mill Company, in that they
affirmatively show that no service of process conferring
jurisdiction as to any of these was made upon the owner of the
premises within the life of any of their liens.

The special statute limiting the life of mechanics' liens,
Rem. & Bal. Code, SS 1138 (P. C. 309 SS 71; Laws 1893, p.
35, SS 9) declares:

"No lien created by this chapter binds the property
subject to the lien for a longer period than eight calendar
months after the claim has been filed unless an action be
commenced in the proper court within that time to enforce such
lien; . . ."

This is not a statute of limitations. It "limits the
duration of the lien." Peterson v. Dillon, 27 Wash. 78, 67 Pac.
397; Davis v. Bartz, 65 Wash. 395, 118 Pac. 334. The
general statute governing the commencement of actions passed
at the same session of the legislature (Laws 1893, p. 407,
SS 1 ) declared:

"Civil actions in the several superior courts of this state
shall be commenced by the service of a summons, as
hereinafter provided."

The last quoted section was amended in 1895 (Laws 1895,
p. 170, SS 1; Rem. & Bal. Code, SS 220 [P. C. 81 SS 131 ), to
read as follows:

"Civil actions in the several superior courts of this state
shall be commenced by the service of a summons, as
hereinafter provided, or by filing a complaint with the county
clerk as clerk of the court: Provided, that unless service has
been had on the defendant prior to the filing of the complaint,
the plaintiff shall cause one or more of the defendants to be
served personally, or commence service by publication within
ninety days from the date of filing the complaint."

Unless the special statute (Id., SS 1138) was, by
implication, also amended by the amendment of the general statute
governing commencement of actions, thins extending the life
of the lien merely by filing a complaint, it is plain that the

 674    CITY SASH & DOOR CO. v. BUNN.
                     Opinion Per ELLIS, J.           90 Wash.

lien is lost as to any necessary defendant who is not served
with summons within the eight months.

The owner of property subject to a mechanics' lien at the
time of suit is a necessary party to an action to foreclose the
lien. The proceeding to establish and foreclose the lien is, in
a sense, in Rem. Jurisdiction of the subject matter can only
be acquired by service, actual or constructive, upon the owner
of the interest sought to be subjected and within the
statutory life of the lien.
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; Powell v. Nolan, 27 Wash. 318,
67 Pac. 712, 68 Pac. 389; Northwest Bridge Co. v. Tacoma
Shipbuilding Co., 36 Wash. 333, 78 Pac. 996; Rees v. Wilson,
50 Wash. 339, 97 Pac 245; Pickens v. Polk, 42 Neb. 267, 60 N. W.
566; Ortwine v. Caskey, 43 Md. 134; Hughes v. Torgerson, 96 Ala.
346, 11 South. 209, 38 Am. St. 105, 16 L. R. A. 600.

Our own decisions above cited were nearly all in cases where
it was sought to foreclose liens on community property by
serving only the husband within the life of the lien. It was
held in all of these that the wife was a necessary party
because the community of which she was a member was the
owner of the property. In those cases, it was also held that
service of summons on one spouse is not the commencement of
an action as to the other; and in the Peterson and Northwest
Bridge Company cases, it was held that the bringing in of
the wife subsequent to the expiration of the lien is of no avail
and confers no jurisdiction to enforce the lien. We have
also repeatedly held - and the holding was inevitable - that,
under the provisions of SS 220 above quoted, the filing of the
complaint is not the commencement of an action but only a
tentative commencement, wholly abortive unless followed by
personal service on one or more defendants, or by the
commencement of service by publication within ninety days.
"Both must exist before the action is commenced." Deming
Inv. Co. v. Ely, 21 Wash. 102, 57 Pac. 353; Fuhrman v.

                CITY SASH & DOOR CO. v. BUNN.                675
 Apr. 1916               Opinion Per ELLIS, J.

Power, 48 Wash. 533, 86 Pac. 940; McPhee v. Nida,
60 Wash. 619, 111 Pac. 1049.

When it is remembered that SS 1138 is not a mere statute
of limitations limiting the time of commencing actions, but
fixes a limit to the very existence of the lien, it is palpable
that no action to foreclose a mechanics' lien can be deemed
commenced until the necessary parties to its maintenance
have been served either personally or by publication of
summons. It would seem, also, that this must be done within
the eight months of the statutory life of the lien, because
jurisdiction of such parties, under the foregoing decisions,
is an essential to any action "to enforce such lien" which is
the kind of action which must be commenced within that time
under the terms of the statute. The life of the lien, as fixed
by the special statute on that subject, cannot be held to be
extended for ninety days merely by the filing of a complaint
within the eight months, though followed by service after the
eight months but within ninety days as required by the
general statute as to commencement of actions subsequently
passed. No such implication is necessary, since the filing of
the complaint and the service or publication of summons
thereafter at any time within ninety days may both be
accomplished within the eight months of the life of the lien,
thus giving scope for the operation of all the provisions of
the general statute, SS 220, without extending the statutory
life of the lien as fixed by the special statute, SS 1138. Since
the implication is not necessary, we cannot indulge it. It
follows that personal service must be made upon, or service
by publication must be commenced against, such necessary
parties within eight months after the lien is filed, else the
court acquires no jurisdiction to enforce the lien. We have
in effect so held in Rees v. Wilson, supra, and Davis v. Bartz,
supra.

An examination of the transcript as to the publication of
summons, and of the court's findings as to the filing of liens,
complaints, and cross-complaints, and as to service thereon,

 676    CITY SASH & DOOR CO. v. BUNN.
                     Opinion Per ELLIS, J.               90 Wash.

makes it plain that the court acquired no jurisdiction within
the life of their respective liens to enforce the liens claimed
in favor of the respondents H. A. Hanson, City Sash & Door
Company, Bass-Heuter Paint Company, D. J. McHugh, and
Taylor Mill Company, or any of them. As to the complaint
of H. A. Hanson, the findings disclose that there was no
service of process, either actual or constructive, within eight
months or at all, upon any of the parties. As to the City
Sash & Door Company, no party was served with summons on
either of its complaints within eight months after its lien
claims were filed; and the owners of the property, the
McGintys, were never served with any process. As to the
complaints in intervention of Bass-Heuter Paint Company and
D. J. McHugh, no process of any nature was served, either
personally or by publication, upon the necessary parties, the
McGintys, at any time. As to the claim of Taylor Mill
Company, the findings disclose that, though the complaint in
intervention was filed within eight months after the filing of
the lien claim, the publication of the summons against the
necessary parties, the McGintys, was not commenced until
long after the expiration of the eight months. In any event,
it was fatally defective. The affidavit of publication in the
transcript shows that the summons as published described
other property than that actually covered by the amended
complaint.

It seems to have been contended in the lower court, on the
authority of Peterson v. Dillon, supra, that, because of the
inherent power of the court to consolidate the several actions,
such consolidation gave the court jurisdiction of all parties
who theretofore had appeared or had been served in either
of the actions, and that, by some sort of imputed service, the
appearance of the necessary parties, McGinty and wife, in
the Recchio case inured as an appearance to all the other
complaints and cross-complaints. The language used in the
Peterson case, however, must be confined to the facts in that
case. It can only apply where the subject-matter and issues

                CITY SASH & DOOR CO. v. BUNN.               677
 Apr. 1916               Opinion Per ELLIS, J.

are identical and where the relation of the parties thereto are
the same in each case, which was true of the cases there
consolidated. Neither this court nor any other court, so far as
we are advised, has ever held that a judgment on a complaint,
cross-complaint, or complaint in intervention setting up an
independent cause of action may be rendered without service
on any necessary party merely because the case in which it is
filed was consolidated with an action by another party on a
different cause of action in which such service had been made.
Such a holding would impinge the constitutional guaranty of
due process of law. This court has expressly held that no
jurisdiction is acquired to render judgment on a
cross-complaint setting up a mechanics' lien in the absence of
service of summons or copy of such cross-complaint upon the
defendant, giving him a chance to plead. Powell v. Nolan,
supra.

The decree, in so far as it establishes and forecloses the
liens in favor of the respondents Hanson, City Sash & Door
Company, Bass-Heuter Paint Company, McHugh, and Taylor
Mill Company, is reversed, and the cause is remanded
with directions to modify the decree in accordance with this
opinion and dismiss their several complaints and
cross-complaints in intervention. Appellants may recover their
costs.

MORRIS, C.J., FULLERTON, CHADWICK, and MOUNT, JJ., concur.