Maris v. Clevenger

Citations

• 29 Wash. 395
• 69 P. 1089
• 1902 Wash. LEXIS 601

Syllabus

<p>APPEAL-ERROR IN OVERRULING DEMURRER-EEEECT OE SUBSEQUENT AMENDMENT OE COMPLAINT.</p> <p>Error, if any, in overruling a demurrer to a complaint will not be considered on appeal, where the alleged defect has been obviated by the amendment of the complaint on the trial.</p> <p>LOGGING LIENS — ENFORCEMENT — AMENDMENT OF COMPLAINT AND CLAIM. '</p> <p>Under Bal. Code, §§ 5942, 5944, which provide that' amendments to pleadings in actions to enforce logging liens shall he liberally allowed, and that no mistake or error in the statement of the demand shall invalidate the lien, unless made with intent to defraud, the complaint', and the notice of lien made a part thereof, may be amended upon the trial of the action so as to show that the claim o:c lien was for logs cut within eight months prior to filing the lien, instead of within nine months prior thereto, as the original complaint and claim had erroneously alleged.</p> <p>SAME.</p> <p>Under Bal. Code, §§ 5942, 5944, permitting amendments and declaring that unintentional errors in lien claims should not invalidate same, the right of lien would not be destroyed by the mingling of non-lienable with lienable claims.</p> <p>SAME ■— WAIVER OF LIEN BY CONTRACT.</p> <p>A contract between the owner of land and other parties for logging same would not constitute a waiver of the owner’s right of lien upon the logs cut, by reason of provisions in the contract that the loggers were given a certain time to log the land, within which time they were to run the timber out by way of the river co some reliable mill or lumber company on Gray’s Harbor and market the same within a reasonable time, leaving with the purchaser of such logs the stumpage agreed upon, since there is nothing in such provision to the effect that the owner agreed not to look for his pay until the logs were sold nor anything else negativing the intention of the owner to claim a lien (Anderson v. Tingley, 24 Wash. 537, distinguished).</p>