Pacific Iron & Steel Works v. Goerig , 55 Wash. 149 ( 1909 )

Fullerton, J.

The respondent repaired a certain steam shovel at the request of the appellant, furnishing the necessary labor and material therefor. ° The work and labor was not paid for on its completion, and to secure payment, the respondent filed a lien upon the shovel under the act of March 6, 1905 (Laws 1905, p. 137), the lien substantially conforming in form and substance to the requirements of the statute. Later on it began suit to foreclose the Hen, averring in its complaint that it furnished the labor and material at the instance and request of the appellant, he being the owner of the steam shovel. Issue was taken on the allegations of the complaint, and the case set down for trial before that department of the court then sitting for the trial of causes of equitable cognizance.

At the trial the respondent introduced evidence tending to show that it repaired the shovel at the instance and request of the appeHant, that the reasonable value of the labor and materials required for that purpose was the amount alleged in the complaint, and that no part thereof had been paid, but failed to show any fact tending to estabHsh a Hen upon the shovel for the materials furnished or work performed. When the respondent rested, the appellant moved to dismiss the case for want of jurisdiction, contending that since the respondent had failed to offer any evidence tending to estabHsh the Hen, his action became one at law, of which the equity department was without jurisdiction to hear or deter-, mine. The motion was overruled, whereupon the appellant offered evidence in his own behalf, the trial finally resulting in findings and a judgment in the respondent’s favor.

It is first assigned that the court erred in exercising jurisdiction over the cause. It is argued that since the case was begun as a suit in equity to foreclose a Hen, the court was without jurisdiction to determine it as an action at law to recover a money judgment. But this position is not tenable. The court unquestionably had jurisdiction of the action and the right to proceed with its trial upon the merits. If the appellant had asked for a jury trial on the legal questions involved after the appellant had abandoned the Hen, the trial court might properly have granted the motion even to the extent of postponing the trial to a later time, especially as the respondent introduced no evidence to establish its lien, but no error was committed in refusing to dismiss for want of jurisdiction.

It is next objected that the court was without authority to enter a personal judgment against the appellant, but manifestly there was nothing inherent in the proceedings that prohibited this form of judgment. A personal judgment is proper in an action brought to foreclose a hen, whenever the pleadings and evidence justify it. Such a judgment is not prohibited merely because the plaintiff seeks additional relief in the way of foreclosure of a lien, and this is true whether the hen is estabhshed or not.

Again, it is complained that the court erred in finding that the labor and materials were furnished at the request of the appellant, and that the appellant was the owner of the shovel. On these questions we think the weight of the evidence preponderates in favor of the finding of the court, at least, there is not such a doubt as. to authorize us to find the other way. In the brief, however, our attention is called to a case, which was affirmed in this court, where a jury found that one Peterson, and not the appellant, owned this shovel at the time the respondent repaired it. But, aside from the fact that ownership of the shovel is immaterial, since it is shown that the repairs were made at the appellant’s instance and request, the record of that case is not before us. To make it available as res judicata, the appellant should have pleaded it in his answer and introduced it as evidence at the trial. The superior court cannot, while trying one cause, notice judicially the records in other causes pending or tried before it, even when between the same parties, and what the trial court cannot judicially notice, the appellate court cannot notice when sitting in review of its judgment. Lownsdale v. Grays Harbor Boom Co., 54 Wash. 542, 103 Pac. 833.

The only other assignment necessary to be noticed is that the respondent had no legal capacity to sue. This contention is founded on the wording of the statute authorizing the filing of liens; it being thought that the classification of the persons authorized to take advantage of the statute was not broad enough to include the respondent. But this contention is likewise untenable. The respondent is a corporation organized for the purpose, and engaged in the business, of operating a machine shop for the construction and repair of machinery. Clearly it has capacity to sue for work performed in its capacity as a machinist. Whether or not it can lawfully claim a lien under the statute is not a material question here. In this proceeding it was not allowed a lien thereunder.

Notwithstanding the appellant has devoted a large space in his brief to a discussion of the evidence, we feel that it would serve no useful purpose to enter upon its review at further length. Its perusal has convinced us that the proofs decidedly preponderate in favor of the respondent, and there being no errors of law in the record, the judgment will stand affirmed.

Budkin, C. J., Gose, and Chadwick, JJ., concur.

Morris, J., took no part.