Washington Rock Plaster Co. v. Johnson

The opinion of the court was delivered by

Hoyt, J.

This is an appeal from a decree, in a consolidated case, for the foreclosure of certain liens upon the property of the appellants.

The claim of the plaintiff, the Washington Rock Plaster Company, is attacked upon two grounds — one, that the work for which the lien was claimed was not fully completed, the other, that it was unskillfully done, and therefore of less value than contemplated. The proofs upon these questions were not very satisfactory, but were sufficient to sustain the decree, as this court will not reverse a finding of the superior court unless there was a substantial failure of proof to support it.

The lien of the plaintiff, Wheeler, Osgood & Co., is also attacked upon two grounds — one, that the terms and conditions of the contract were not sufficiently set out in the notice, and the other that the husband alone was named as the owner of the property. In our opinion the statement of the contract was sufficient under the rules announced by the decisions of this court, cited by appellants. In the cases so cited the statement of the contract in the lien notice under consideration was in some respects similar to the one in the case at bar, but did not contain, as did this one, any sufficient reference to a bill of items showing in detail all the materials furnished under the contract. The paper title was in the name of the husband, and knowledge of the fact that he had a wife was not so brought home to the plaintiff as to make it necessary that it should name her as one of the owners of the property. Besides, the necessity of making her a party to the lien notice, in any case where the record title is in the husband alone, may well be doubted. The object of the notice is to advise a searcher of the records of the existence of the lien. And as his attention is directed to the record title the claim against it will give full notice. The husband is so far charged with the care and management of the community property that notice to him fully serves the object of the lien notice.

The objection to the decree so far as it relates to the claims of the intervenors is founded upon the contention that, in a suit for the foreclosure of a lien of a mechanic or materialman, it is not within the discretion of a court to allow an intervention for the purpose of enforcing a lien upon the same property growing out of contracts of a different nature. Some authorities are cited to sustain this contention, but in our opinion they are remotely, if at all, in point. Under our statute, there is no reason why other liens than those of mechanics and materialmen cannot be joined in an action for the foreclosure of such liens, if, in the opinion of the trial court, the convenience and interests of all parties demand such joinder. All the liens relate to the same subject m'atter, and suits thereon seek a common remedy ; that is, to have the property sold in satisfaction thereof, and bear such relations to each other as to come within the provisions of our statute as to intervention.

Another objection is raised to the entire decree. There was no finding of facts by the court preliminary to its rendition. Our present statute requires a finding of facts in an equity case as well as in one at law tried by the court, but it does not follow that a decree will be reversed on appeal, for want of such finding when it is not made to appear by the record that there was any request for a finding, or any objection raised on that account in the court below. To-make such irregularity available on appeal a timely request and objection at or before the time of the entry of the decree must be shown. There is nothing in the record tending to-show such action in the case at bar. On the contrary there are some recitals in the decree which tend to show that a finding of facts other than therein contained was expressly-waived by all parties.

The judgment will be affirmed.

Scott and Stiles, JJ., concur.

Dunbar, C. J., concurs in the result.

Note — Under Laws 1893, p. 38, $ 16, the person in whose name the record title to community property stands is the only necessary party to a lien notice.