Doyle v. McLeod , 4 Wash. 732 ( 1892 )

The opinion of the court was delivered by

Hoyt, J. —

Respondent moves to dismiss the appeal herein on two grounds — (1) That the appellant is neither aggrieved by, nor interested by, the judgment appealed from; (2) that the proper parties have neither joined nor been served in appeal. As to the first ground, respondent makes no argument, excepting that there may be gathered in a vague way from his brief that he claims that the Washington Southern Railroad Company had never been properly substituted for the Satsop Railroad Company as defendant in the action. We think the record shows that such substitution had been made, and that if it had not, that the Satsop Railroad Company must be held to have been the party which appealed, instead of the Washington Southern Railroad Company.

As to the second point, the record shows that at the time of the rendition of the judgment, notice of appeal was given in open court. Under our statute this is sufficient notice to all persons properly parties to the appeal. The argument of the respondent is, that in this case such a notice could not affect the fifty-three original plaintiffs, for the reason that the suit as to them had been long before decided, and their claims paid. His contention in this regard is doubtless true, but the same argument establishes the fact that these original plaintiffs were no longer interested in any manner in the result of the action, and were not in any proper sense parties to the judgment, at that time rendered, and therefore were not necessary parties to the appeal. The motion to dismiss the appeal must, therefore, be denied.

Respondent also moves to strike the statement of facts on various grounds set out in his motion. The two principal ones being — (1) That no notice of the settlement thereof was given as required by statute; and (2) that matter, not included in the proposed statement on file at the time the notice of settlement was given, had been included in the statement as settled. It is not contended but that regular notice of the settlement of the statement at the pity of Montesano, on the 20th day of November, was given, but it is claimed that there was no proper adjournment of such settlement from thattimeuntil the time when it was actually settled in the city of Olympia. The j udge, in his certificate, however, certifies that regular notice had been given of the settlement on the day named, at Montesano, and that such settlement had been by him adjourned from time to time until the day when it was finally settled in the city of Olympia, as above stated. We think such certificate establishes, prima facie at least, the fact that the settlement was adjourned by order of the court, as required by the statute. It is argued by respondent that no such order appears in the record. If this were true- it could not prove anything as against the recitals of the judge in said certificate. In the absence of any such recitals, the fact that no order of adjournment appeared in the record might be sufficient to show want of jurisdiction, but the presence of such recitals show that in fact the order of adjournment was made. And if such order is not found in the transcript it is prima facie the fault of the clerk, or parties, in not having the proper entry of the order made. The order, however, is that which adjourns the hearing upon the settlement, and not the entry thereof. Besides, there has been an additional transcript filed, which supplies the defect in said record as to the entry of said order.

On the other ground the rule should be that the statement placed on file as a foundation for the proceeding for the settlement of the facts in the action should be so far complete as to give evidence of a bona fide effort on the part of the moving party to present a statement which completely embodies the facts material to the appeal-When this is done, the foundation for jurisdiction in this regard is complete, and the fact that the court or the other party may suggest, and there be incorporated in the statement, additional facts, can in no manner affect the settlement. Apply this rule to the case at har, and we think the proposed statement conferred jurisdiction. In fact, we are of the opinion that all the matters added to said proposed statement, and settled as part of the facts on appeal, were absolutely irrelevant thereto, and the fact that the court saw fit to include them in said statement could in no manner affect the rights of the moving party.

Respondent also moves to strike the statement, upon the ground that the certificate of the judge is insufficient. The judge certifies that the statement contains all the material facts, including all exhibits in the case, but does not certify that the same contains all the testimony on which the cause was tried, together with all objections or exceptions taken to the reception or rejection of testimony. It is claimed that the omission to certify as to this latter fact renders the certificate insufficient. This court has used language in some of its opinions which would, perhaps, warrant this contention on the part of the respondent, but as we are now advised, it has never decided the precise question here presented. The statute provides that it shall be sufficient if the judge certifies that the statement contains all the material facts. It then goes on to provide that in a law case, the statement need contain no more than was formerly necessary in a bill of exceptions, but that in an equity case, tried upon its merits, it should contain all the testimony upon which the cause was tried, together with any objections or exceptions to the reception or rejection of testimony. It is the duty of the court tp construe this whole section together, and thus construed, we are of the opinion that in any case, whether at law or in equity, the certificate of the judge that the statement contains all the material facts is, prima facie, sufficient to give this court jurisdiction. If, however, upon an examination of the transcript itseif, this court finds that in a suit in equity the testimony upon which the cause was tried, together with the obj options and exceptions relating thereto, have not been included in the statement, the prima fade presumption of jurisdiction will be destroyed, and it would be unable to hear and determine the action. It is the plain intent of said section that in a law case a single question may be brought to this court for review and if so much is brought here as a statement of facts as would have been a sufficient bill of exceptions under the old rule to require this court to pass upon such single question, then the judge could properly certify that all the material facts were embodied in the statement. It is equally clear that in an equity case, tried upon its merits, the case can only be brought here as a whole, and this court, before it can proceed at all in an appeal in such a case, must be fully placed in possession of the entire case as it was presented to the court below. In other words, the material facts which must be contained in the statement are the facts material to the appeal, and such words have no reference whatever to facts in the case as presented to the trial court. The difference in the requirement of what must be contained in the statement in a law case and in an equity case grows entirely out of the different relation which this court bears to suits at law and in equity. In the one, as we have seen, it may review any single question which either of the parties see fit to bring here for that purpose; in the other it tries the case de novo upon the same evidence and facts that it was tried upon in the court below. We think this certificate was sufficient. The motion to strike the statement must be denied.

The only controversy upon the merits is as to the lien claims originally filed on behalf of W. H. Kneeland as to a portion of the logs in controversy, and of the Mason County Central Railroad Company as to another portion, both of which claims have been assigned to and are now held by Allen C.Mason,therespondenthere. The appellant purchased the logs of the person against whom said lien claims were originally filed. It had no contract relation with either of said lien claimants, and can only be held liable by force of the statute relating to liens. Each of the liens was filed for sums alleged to be due for stumpage for logs cut upon the premises of the respective claimants. The court below held the appellant, as the purchaser of a portion of the logs for which the stumpage was claimed, liable for the entire amount due the respective claimants for such stump-age, and rendered judgment accordingly, from which judgment this appeal was taken. The appellant urges two reasons why such judgment cannot be sustained: First, that the claims of lien filed by the respective parties are each insufficient and absolutely void so far as said appellant is concerned; and "second, that even if said lien claims are sufficient, the appellant under the circumstances of this case could only be held for the stumpage upon that particular amount of logs which had come into its possession. The two lien claims are not identical, and we shall have to discuss them separately. That part of the lien notice filed by W. H. Kneeland which is material for the purposes of the discussion is as follows :

“ W. H. Kneeland, of Mason county, State of Washington, claims a lien upon a lot of saw logs, being about one million one hundred and ten thousand feet in quantity, which were cut in Mason county, Washington, and are marked thus (K. 33), about one hundred and fifty-three thousand feet of which are in the possession of the Hart Mill Company, of Seattle, Washington, and the remainder of which are now lying in the water in the bay at Shelton, Washington.”

Appellant contends that this description is not a sufficient compliance with the statutory provisions to give notice to anyone. There is much force in its contention in this regard. The description is very indefinite. Construing it alone, it only says that a lot of saw logs, containing about one million one hundred and ten thousand feet, has been cut and put into tbe water, and marked K. 33; that about one hundred and fifty-three thousand feet thereof are in the possession of the Hart Mill Company, of Seattle, Washington, and that the remainder are lying in the bay at Shelton, Washington. The word “lot” can have no application nor force in adding to the description of the logs thus divided. If it had force, as applied to the whole of the logs in question, such force was entirely destroyed when it was made to appear that a portion of said logs were in one place and the remainder in another. The only description as to the logs not included in the raft in the possession of the Hart Mill Company is that they are now lying in the water in the bay at Shelton. There is no statement that they are rafted or loose; that they are together or widely separated; and for all that appears in said notice to the contrary, they may be mixed with other logs with exactly the same mark, belonging to different parties. The description does not come up to the mark laid down by the supreme court of this territory in the case of Wheeler v. Port Blakely Mill Company, 2 Wash. T. 71 (8 Pac. Rep. 635). There the description set out a definite lot or parcel of logs of a certain mark. Here the description in no way imports any such definite lot or parcel, so far as the logs not included in the Hart Mill Company’s boom are concerned. It is evident that the description in the notice is not what it should have been, but in consideration of the evident intention of the legislature to protect claims of this kind, and of the fact that to insure the results desired by the legislature a liberal rule must obtain as to the construction of these lien notices, we have concluded that this description may be held sufficient. The-approximate amount of the logs left in the waters at Shelton may be gathered from the notice. This ■ being so, it-may be assumed that they are together, and constitute the-, only lot of logs marked as they are, until the contrary is-made to appear. If, however, it should be made to appear on the part of the defense that there were other logs with that mark in the waters of the bay at Shelton, the sufficiency of the description would be destroyed. This being so, we think we best subserve the object of the legislature by holding the notice in question good, and leaving it for the defense to establish facts, if they exist, which would make it bad. No hardship is inflicted upon the defense by such course, whereas to construe these lien notices strictly, and require them to show every fact necessary to secure perfect identification of the subject matter of the lien, would necessitate such notices being made exceedingly long, and require in their preparation much technical skill. This lien notice must be held to be sufficient.

It substantially appears upon the face of such lien that only nine hundred and fifty-seven thousand feet of the logs for which the lien was claimed went into the possession of the appellant, and the proof establishes such fact beyond question. The court, however, held it responsible for the stumpage on the entire one million one hundred and ten thousand feet. Under the circumstances of this case, as disclosed by the evidence, this could not be done. If we should so construe the contract under which the logs were cut as to warrant a lien for the whole of the logs in question being enforced against a distinct portion thereof, it could only be on the ground that the contract for the cutting of the logs on the particular description of land mentioned therein was an entire one. If we should so construe it, we should do so in direct opposition to the testimony on the part of the respondent, and in so doing should destroy the sufficiency of said lien notice, by showing that it does not contain a full statement of the demand together with the amount thereof after deducting all just credits and offsets, upon which ground said lien notice is also attacked by the appellant. We hold, however, that under the testimony on the part of the respondent, the course of the parties had been such as to compel the court to construe the contract for the cutting of the logs to apply separately to each thousand feet. And that the claim of eight-five cents for stumpage upon each of said thousand feet thus cut could be enforced as a sepaarate claim. The respondent has to invoke this construction in order to save the lien notice, and having done so he cannot ask that the appellant, into whose possession only a part of the logs have come, should be held liable for the stumpage on the whole. The judgment of the court as to this particular lien claim then can be sustained so far as the sum of $813.45 is concerned, together with the attorney’s fee and costs as therein adjudged, but cannot be sustained as to the $130.05, the stumpage on the one hundred and fifty-three thousand feet which never came into the possession of the appellant.

The material part of the notice of the other lien is as follows:

“TheMason County Central Railroad Company . . . claims a lien upon a certain lot of saw logs described as follows: Being one million six hundred and twenty-five thousand feet in quantity, which were cut in Mason county, Washington, being marked thus, K. 30, and a part of which are loose in the water, and a part made up in rafts, one raft of which is now in the possession of the Hart Mill Company, of Seattle, Washington, and the remainder are now lying in the water in the bay at Shelton, Washington.”

This description is attacked by the appellant for the same reason as was the other, and we think that such attack must prevail. We cannot conceive of any description which could be more indefinite than this. It is simply that there has been one million six hundred and twenty-five thousand feet of logs put into the water; that a certain indefinite portion thereof are in the possession of the Hart Mill Company, of Seattle, Washington, and that "he remainder are in the water in the bay at Shelton, some in rafts, and some loose. There is no statement whatever as to how many rafts, or what proportion of the whole amount are in rafts, or what proportion of the whole amount are in the possession of the Hart Mill Company, or situated in the water at Shelton. To hold this notice good would require a more liberal construction thereof than it is possible to give it. Every statement therein might be literally .true, and but a few hundred feet of the logs be in the water at Shelton, and it might be equally true, and the entire one million six hundred and twenty-five thousand feet with the exception of a few hundred feet be thus situated. Such a description is too indefinite for identification, and public policy does not require its being sustained, for the reason that it is an easy matter to make such descriptions more certain and definite. If this description had been aided by the proofs it is possible that it could have been saved. But such was not the case. It nowhere appeared from the proofs how many of this particular lot of logs was in the possession of the Hart Mill Company, or how many had gone into the possession of the appellant. Under these circumstances, even if we should hold the lien notice good, the judgment rendered thereon could not be sustained. There was no basis upon which the amount for which appellant could be held liable could be estimated. The undisputed facts showed that the entire one million six hundred and twenty-five thousand feet had not gone into its possession. And as we have seen in the discussion of the other lien, it could only be held for stumpage on the logs that came into its possession, it follows that those figures could not be taken as a basis upon which to estimate liability, and there are no others shown by the proofs.

The judgment against the appellant in favor of said Mason as the successor in interest of said W. H. Kneeland and the Mason County Central Railroad Company must be reversed, and the cause remanded with instructionsto enter a judgment in his favor on account of the lien filed in behalf of said W. H. Kneeland for the sum of $813.45, with an attorney’s fee of $75, and costs in the lower court so far as they relate to said claim. • The appellant will recover its cost on appeal.

Anders, C. J., and Dunbar, Stiles and Scott, JJ., concur.