Ellsworth v. Layton

Washington Supreme Court March 6, 1905

Ellsworth v. Layton, 37 Wash. 340 (Wash. 1905)

79 P. 947; 1905 Wash. LEXIS 731

Opinion of the Court

Per Curiam.

This action was brought by respondent Ellsworth, as assignee of one Munson, against H. J. Bailey and Edna Bailey, his wife, to recover judgment for *343$2,000, with interest and costs, on two promissory notes, and to foreclose the mortgage of even date with said notes, upon lot 22, block 4, Capitol Hill Addition to the city of Seattle. Different parties who claimed interest in the land were made defendants, among them the appellants in this case-. The particular manner in which the different parties to this action were brought into court is not material, for the pertinent question in the case is the right of the appellants to a lien upon the land sought to be foreclosed. The court found that the liens filed by the appellants were not filed within the statutory time after the completion and acceptance of the work for which the liens were filed. The work having been completed and accepted during the first days of October, and the lien being filed on the 3d day of April, the time at which the work on the building involved was completed is the question of fact which determines the appellants’ rights in this case. That fact was found against the appellants by the trial court, and, from an examination of the record, we are satisfied that such finding was justified by the testimony in the case, and that the rights of the parties were properly fixed by the judgment of the court.

There is no merit in the contention that the judgment was invalid because the pleadings were not amended on behalf of the substituted parties. The parties appellant were represented at the time of the substitution, and made no objection thereto, at any time, and no request that the pleadings be amended. The assignments, and the. testimony in relation to the same, were introduced at the trial without objection. Ho prejudice in any event could attach to the appellants, for the only question at issue was the priority of the liens. In addition to this, this court, in the trial of an equity cause, would consider an insufficient pleading as amended to correspond with the facts proved. *344There seems to have been no exception taken to the finding of the court in relation to the separate property of Edna Bailey, and we are unable to understand in what way it affects the appellants’ rights in this ease, even if the court should have erred in regard to such findings.

There not appearing any error in the record, the judgment is affirmed.

Reference

Full Case Name: P. C. Ellsworth v. F. W. Layton
Cited By: 4 cases
Status: Published
Syllabus: Mechanics’ Liens — Date of Completion of Woek — Supplying Omissions Aftee Acceptance of Building. Where a building was accepted as completed in October, and a mechanics’ lien was not filed until April, findings to the effect that the lien was not filed within the required time after the completion of the building are sustained, notwithstanding that, on January 6, metallic flashings, mat had been inadvertently omitted, were put over six windows on the demand of the owner, and on February 16, certain drain tile was relaid, where it appears that such work was in the nature of repairs to remedy defects not apparent at the time of the acceptance of the building. Appeal and Eeeoe — Review—Objections—Substitution of Paeties Without Amending Pleadings. Error cannot he predicated on the failure to amend the pleadings at the time of making a substitution of parties, when no objection thereto was made in the court below. Appeal and Eeeoe — Review—Pleadings—Amendments to Confokm to Pboof. In am equity case, tried de novo in the supreme court, an insufficient pleading will he considered amended to conform to the proof.