Hinckley v. City of Seattle , 37 Wash. 269 ( 1905 )

Hadley, J.

This is an action to remove the cloud of a judgment taken to foreclose a street assessment lien. The city of Seattle recovered the judgment September 7, 1897. This suit was commenced October 17, 1903. The complaint avers that more than six years have elapsed since the entry of the judgment, which remains unsatisfied and has not been revived, that no execution has been issued thereon, and that it has ceased to be a lien upon the real estate in question. The city demurred generally to the comjolaint, on the ground that it does not state sufficient facts to constitute a cause of action. The demurrer was sustained. The plaintiff declined to further plead, and judgment was entered dismissing the action. The. plaintiff has appealed.

The sole question is, can the lien of a judgment, entered in a street assessment foreclosure, be enforced after such lapse of time as destroys ordinary judgment liens? Appellants insist that the lien of such a judgment is subject to the same limitation as that of an ordinary judgment. This court has held that a judgment becomes inoperative for any purpose after the expiration of the period prescribed by statute for the duration of its lien. Brier v. Traders’ Nat. Bank, 24 Wash. 695, 64 Pac. 831; Packwood v. Briggs, 25 Wash. 530, 65 Pac. 846; Hardin v. Day, 29 Wash. 664, 70 Pac. 118. The judgment involved in the case at bar was entered after the act of 1897 took effect. Bal. Code, §§ 5149, 5150. If it is subject to the rule of the above cited cases, then the duration of its lien was six years, and that period expired September 7, 1903. Section 5149, supra.

The-respondent city has filed no brief, but from appellants’ brief we apprehend that respondent’s counsel urged the view in the lower court that the lien of a street assessment is perpetual until the amount thereof is paid, as this court has held the general tax lien to be. We cannot concur in such view. The general tax lien was held to be perpetual for the reason that our revenue law declares that the lien shall continue until the taxes are paid. We are not advised of the existence of any such statute relating to street assessment liens. The application of the statute of limitations to' the enforcement of assessment liens has heen repeatedly recognized by this court. Spohane v. Stevens, 12 Wash. 667, 42 Pac. 123; Ballard v. West Coast Imp. Co., 15 Wash. 572, 46 Pac. 1055; Seattle v. De Wolfe, 17 Wash. 349, 49 Pac. 553; Fogg v. Hoquiam, 23 Wash. 340, 63 Pac. 234. Therefore, the street assessment lien is not like that of the general tax, but is subject to the statute of limitations, and, when the lien has become merged in a judgment, we know of no reason why it shall not be governed by the rules which apply to other judgment liens: Such was the effect of the decision in Dorland v. Smith, 93 Cal. 120, 28 Pac. 812.

Por these reasons the judgment is reversed, and the cause remanded with instructions to the lower court to overrule the demurrer.

Mount, C. J., Fullerton, and Dunbar, JJ., concur.

Rudkin, Root, and Crow, JJ., took no part.