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(11 Wash. 386)

the appellants, it is contended that the proSMITH v. DE LANTY, Sheriff, et al. ceedings had were of the same legal effect (Supreme Court of Washington. March 9, as though the original judgment had been 1895.)

modified by striking therefrom the sum of MODIFICATION OF JUDGMENT-LIEXS.

$90, or the collection of that much of the 1. Code Civ. Proc. $ 1397, providing that,

entire amount restrained; while the contenwhen any judgment is modified, all liens ob- tion on the part of the respondent is that tained under it should be preserved to the modi- since the first judgment was set aside, and fied judgment, applies to liens on personalty as well as realty.

further proceedings under the execution is2. Though the record shows that a former sued thereon permanently restrained, all judgment was in form vacated, and a new one rights fowing from such judgment were terentered, yet where the new judgment is only

minated, and that the claim of the appelfor a small amount less than the other, and is otherwise the same, it should be treated as a

lants can date only from the time of the modification of the former, so as to preserve liens levy under the second execution, at which acquired thereunder.

time the judgment debtors did not own the Appeal from superior court, Jefferson coun- property. If the proceeding in the action ty; R. A. Ballinger, Judge.

upon the 2d day of April was a modificaAction by A. I. Smith against Richard De tion of the former judgment, the lien of the Lanty, sheriff, and another. There was a execution issued thereon before modification judgment for plaintits, and defendants ap- would continue and inure to the benefit of peal. Reversed.

the lien created by a levy of the execution Warren Carroll, Chas. E. Patterson, and

issued upon the judgment as modified, and R. W. Jennings, for appellants. George H.

give it the same force as though the levy

thereunder had been made at the date of the Jones, for respondent.

levy under the former execution. See Code HOYT, C. J. The title and right to pos

Proc. $ 1397.1 session of certain personal property situated

It is claimed by the respondent that the in Jefferson county are involved in this ac- liens which are preserved to the modified tion. Prior to March 9, 1894, such property judgment by the provisions of this section belonged to and was in the possession of

are those upon real estate, and not those John Fitzpatrick and Alice Fitzpatrick, his upon personal property. But we are unable wife. On that day it was levied upon by

to find any warrant in the language used for the sheriff, under an execution issued upon

such distinction, nor would a construction a judgment against said John and Alice Fitz

which makes such a distinction conform to patrick in favor of William Bishop, one of

our ideas of justice. If justice requires that the appellants. By virtue of such levy, the a lien upon real property acquired under a sheriff advertised the property for sale, and

judgment shall inure to the benefit of the retained possession thereof until he made a

lien when renewed under the modified judg. further levy thereon, under another execution ment, there is no reason why one upon perissued as hereinafter stated. While the sher

sonal property should not have the same ef.

fect. iff was so in possession, the said John and Alice Fitzpatrick made a bill of sale of the

From what we have said, it must follow property to a. I. Smith, the plaintiff in the

that, if the proceedings under consideration action. This bill of sale was executed on

resulted in a modification of the former judg. the 31st day of March. On the 27th day of

ment, the lien of the execution upon the March, the sheriff was served with an or

modified judgment is superior to the claim der restraining him from proceeding in the

of title on the part of the plaintiff, for the service of the execution until the further

reason that, when aided by the lien acquired order of the court. Thereafter, on the 2d

under the former execution, it dates back to day of April, such proceedings were had in

a time when the defendants in the execution the original action of Bishop v. Fitzpatrick

had title to the property, and the plaintiff, that the judgment upon which the execution

Smith, had no claim whatever thereto. had issued was set aside, and a new one

The recitals in the record as to these proentered therein of the same force and effect

ceedings are not as full and satisfactory as as the prior one, except that the amount was

they might have been, but we are satisfied reduced in the sum of $90. Execution was

therefrom that the judgment entered on the issued on the new judgment, and placed in

2d day of April was only a modification of the hands of the sheriff, who levied the same

the former one. It is true that in form the upon the property then in his hands by vir

former judgment was set aside and vacated, tue of the former execution, which was then

and a new one entered; but when the fact returned, with the statement of the facts as

that the original judgment was for over to its further service having been temporari- $2,300, and the new one was of the same ly and afterwards permanently restrained.

tenure and effect, and for a sum only $90 The principal question for decision is as to

less, is taken into consideration, justice rethe effect of the proceedings in the original action, subsequent to the levy of the nist

1 Code Civ. Proc. $ 1397, provides that, when

a “judgment is modified, all liens and securities execution, upon the lien thereby created up

obtained under it shall be preserved to the modon the property in question. On the part of ified judgment."

quires that the new should be treated as a of the errors assigned go to the pleadings in modification of the old judgment for the the action, the result of striking the statepurpose of protecting liens acquired there- ment will be that the judgment of the supe under. For that purpose the new judgment | rior court must be affirmed. should be held to be a continuation of the old, except to the extent that it is substantially changed. When only a modification is

(11 Wash. 377) sought, the usual practice is to vacate the · CHASE V. TACOMA BOX CO. et al. old judgment, and enter a new one. Hence

(Supreme Court of Washington. March 8, the fact that in form the old judgment was

1895.) vacated, and a new one entered, will not

WHAT ARE FIXTURES MACHINERY CHATTEL warrant us in holding that the rights under

MORTGAGES-FAILURE TO RECORD. the old one were forfeited upon its vacation, 1. Machines connected by belting with the The undisputed proofs show that the lien shafting in a building, which are fastened to the under the execution, issued upon the first

floor by screws or nails and bolts, and could be

removed without impairing the freehold, and judgment, attached to the property on March could be used for the purposes for which they 9th, and, in our opinion, the further undis- were intended as well in any other building, and puted proofs require us to hold that such are constructed after fixed patterns and bought

and sold in gross, are not fixtures. lien remained in force, and inured to the

2. A mortgagee claiming chattels as fixtures benefit of the execution issued upon the new under a real-estate mortgage cannot complain judgment. It follows that the lien under that a subsequent mortgage on the chattels is the execution levy was superior to the title

not verified by the mortgagor, and recorded, as

required by 1 Hill's Code, 8 1618 et seq., as the of plaintiff, and that he was not entitled to

statutory requirements are only for the protecthe possession of the property.

tion of creditors of the mortgagor and subseThe judgment will be reversed, and the

quent purchasers and mortgagees. cause remanded, with instructions to enter Appeal from superior court, Pierce county; a judgment in favor of the defendants for W. H. Pritchard, Judge. the return of the property, or, if return can- Action by Herman L. Chase against Taconot be had, for its value.

ma Box Company and others to foreclose a

real-estate mortgage. Robert Wingate, as DUNBAR, ANDERS, SCOTT, and GOR- receiver of defendant Merchants' Bank of DON, JJ., concur.

Tacoma, filed a petition claiming chattels on the land under a mortgage to the bank.

Judgment was rendered for plaintiff, and de(11 Wash. 712)

fendant Wingate, receiver, appeals. ReTATUM et al. v. BOYD et al.

versed. (Supreme Court of Washington. March 9,

Doolittle & Fogs, for appellant. Dunning 1895.)

& Pratt and N. C. Richards, for respondent. APPEAL-NOTICE OF FILING STATEMENT-DisMISSAL.

GORDON, J. The subject-matter of this On failure of appellant to serve notice on appellee of the filing of the proposed statement

litigation is machinery and apparatus in a of facts within 30 days after the entry of the box factory located upon block 7,632, in & judgment, no extension of time having been al- certain addition to the city of Tacoma. Both lowed, a motion to strike the statement from the record will be granted.

parties here are claiming the property under

and by virtue of decrees of foreclosure of Appeal from superior court, Snohomish

mortgages, of which mortgages respondent's county; John C. Denney, Judge.

is prior in point of time. The appellant bases Action by H. L. Tatum and another against

his claim to the machinery in question on the Joseph R. Boyd and others. There was a fact that his mortgage describes the real judgment for defendants, and plaintiffs ap

estate, together with the machinery and appeal. Affirmed,

paratus thereon situate, and claims that the Woodward & Woodward and A. W. Frater, | property is personal property, and does not for appellants. Ault & Munns, for respond- pass with the realty, and that he is entitled ents Boyd, Stevens, and Dow. Hawks & to the same as personalty under and by vir. Heffner, for respondent Ordway.

tue of the description of the property in his

mortgage, which, after describing the land, PER CURIAM. It appears from the rec- is as follows: "And the machinery and apord that the judgment in this case was ren- paratus upon said premises at the time of dered upon the verdict of a jury. It further giving said mortgage." Appellant claims appears that the proposed statement of facts that these words show an express intention was not served upon the opposite party until to convey what he contends is personal propmore than 30 days after the date of such en- erty, which was not conveyed under respond. try, and that the time in which to make such | ant's mortgage conveying the real estate, to service was not enlarged by the court. It gether with the tenements, hereditaments, follows that, under well-settled rules of prac. and appurtenances thereunto belonging. tice, the motion to strike such statement from There is no claim that appellant's mortgage the record must be granted; and, it appear- was ever filed or recorded as a chattel mort. ing from the brief of the appellants that none gage. The court below sustained respond.

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ent's motion to dismiss appellant's petition, * is in favor of viewing everything as and the appellant, having excepted to such a fixture which has been attached to the realruling, prosecutes this appeal.

ty with a view to the purposes for which it Of the major portion of the machinery and is held or employed, however slight or temapparatus, the petition avers that “said ma- porary the connection between them. * chinery and apparatus can all be removed The question whether chattels are to be rewithout injury to the freehold or to said ma- garded as fixtures depends less upon the chinery and apparatus; that there is no spe- manner of their annexation to the freehold cial adaptation of the real property to the than upon their own nature and their adaptasaid machinery aud apparatus; that said tion to the purposes for which they are machinery and apparatus are not attached used." In Helms v. Gilroy (Or.) 26 Pac. 851, to the walls of the said building, or in any the court say: “The weight of modern auway annexed in a permanent way to any thority, keeping in mind the exceptions as to part of said building; that said machinery constructive annexation admitted by all the and apparatus rest upon the floor of said authorities to exist, seems to establish the building by means of iron legs, and are fas- doctrine that the true criterion of an irretened to the floor, or to blocks set upon the movable fixture consists in the united applitloor, of said building, by screws or nails or cation of several tests: (1) Real or. conbolts, for the purpose solely of steadying structive annexation of the article in ques. said machinery and apparatus when in use; tion to the realty; (2) appropriation or adapand that said machinery and apparatus can tation to the use or purpose of that part of be used for the purpose for which it was the realty with which it is connected; (3) intended as well in any other place as where the intention of the party making the annexanow located, and that said machinery and tion to make the article a permanent accesapparatus, although a portion thereof is con- sion to the freehold, this intention being innected with the shafting to said building by ferred from the nature of the article af. belting or otherwise, are all independent ma- fixed, the relation and situation of the party chines, complete in themselves, and that they making the annexation, and the policy of the are constructed after fixed patterns, and are law in relation thereto, the structure and solely implements bought and sold in gross, mode of the annexation, and the purpose or and in no way fixtures or part or parcel of use for which the annexation has been the real estate, and that upon the removal of made." And we think that the "annexa. the said machinery and apparatus the value tion" is not of necessity an absolute fastenof the freehold would be unimpaired.” Of ing or continued physical union in all cases. the balance, consisting of chain blocks, belt- It is doubtful if any general rule can be ing, trucks, wrenches, tools, scales, safe, and formulated that will be applicable to all casstitching machines, etc., it is alleged that es, and regard must be had to the particular “none of it is aflixed in any way or manner circumstances of each case. The relationto the freehold.” There is an immense mass ship existing between the parties, the nature of law learning upon the subject of fixtures, of the article, and its use as connected with and the courts have striven to lay down some the use of the freehold, should not be lost general rule by which the facts of each case sight of; but the annexation may be either might be tested, and the conclusion derived actual or constructive, and the intention of whether a particular thing, under certain cir- the owner of the fee is often of the utmost cumstances, constituted a part of the realty importance in determining whether, in a giv. or not; but no satisfactory rule has been de- en case, a chattel has become a fixture. vised, and probably never will be, owing to But, while the intention of the party afthe difficulties inherent in the nature of the fixing the machinery enters into the eleproperty itself. Between landlord and ten- ments of each case, still such mere intention ant many things are regarded as personal will not determine or alter its legal char. which might be considered a part of the acter; and whether or not, in a given case, realty as between vendor and vendee, mort- it remains personalty or becomes a fixture gagor and mortgagee, or heir and executor. must depend upon the facts and circumThe older cases very generally hold to the stances, and not on his opinion. "Movable idea that an actual physical annexation must machines, * * whose number and per be shown. But this strict rule of the old manency are contingent on the varying cirlaw has been much relaxed in favor of trade cumstances of the business, subject to its and manufacture, and the encouragement of fluctuating conditions, and liable to be taken new and constantly growing industries, and in or out, as exigencies may require, are the doctrine of constructive annexation is different in nature and legal character from now very generally, if not universally, rec- the steam engines, boilers, shafting, and othognized. And it is believed that any at- er articles secured by masonry, tempt to solve the question by applying the signed to be permanent, and indispensable sole test of the character or extent of the to the enjoyment of the freehold.” Rogers actual annexation to the soil involves the v. Brokaw, 25 N. J. Eq. 497. In the case of question in many perplexing difficulties. In Wolford v. Baxter, 33 Minn. 12, 21 N. W. Johnson's Ex'r v. Wiseman, 4 Metc. (Ky.) 744, the court say: "While physical annexa. 360, the court said: “The better opinion | tion is not indispensable, the adjudicated

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cases are almost universally opposed to the ing.

* They were constructed after idea of mere loose machinery or utensils, fixed patterns for all purchasers,-things in even where it is the main agent or principal gross, mere implements, heavy and complithing in prosecuting the business to which cated tools. If they ceased to be used in the realty is adapted, being considered a this factory, they were movable without alpart of the freehold for any purpose. Toteration, without detriment to the building, make it a fixture, it must not merely be es- and could be used equally well in another sential to the business of the structure, but place, provided with power to drive them.” it must be attached to it in some way, or, In Cherry v. Arthur, 5 Wash. 787, 32 Pac. at least, it must be mechanically fitted so as, 744, this court said: "In ascertaining whethin ordinary understanding, to constitute a

a machine does become part of part of the structure itself. It must be per- the realty, in favor of mortgagees, the rule manently attached to, or the component part is that the manner, purpose, and effect of of, some erection, structure, or machine annexation to the freehold must be regarded. which is attached to the freehold, and with- If a building be erected for a definite purout which the erection, structure, or ma- pose, or to enhance its value for occupation, chine would be imperfect or incomplete. whatever is built into it to further those obThe intent that they should remain

jects becomes a part of it, even though there for permanent use is unimportant. Intent be no permanent fastening, such as would alone will not convert a chattel into a fix- cause permanent injury if removed. But ture." And this doctrine is reaffirmed in mere furniture, although some fastening be 35 Minn. 543, 29 N. W. 349, in the case of necessary to its advantageous use, is removaFarmers' Loan & Trust Co. v. Minneapolis ble. Peculiarly subject to this rule are maEngine & Mach. Works, where it is held that chines which can be used in one place as machinery, to become part of the realty, well as another, and which add nothing to must be either physically attached to it, or the building, though they may be of advanbe, in ordinary understanding, a part of the tage to the business conducted there." We building upon it; as where the building is are entirely satisfied with what is here said constructed wholly or in part for the ma- upon the subject, and think it best accords chinery, or the machinery is constructed for with reason and modern authority. Carpenthe building, or some part of it is fitted into ter y. Walker, 140 Mass. 417, 5 N. E. 160; it. In Hill y. Wentworth, 28 Vt. 429, it is McConnell v. Blood, 123 Mass. 47; Wheeler held that not only the manner and extent, v. Bedell, 40 Mich. 693; Voorhees v. McGinbut the object and purposes, of the annexa- nis, 48 N. Y. 278; Teaff v. Hewitt, 1 Ohio tion of a chattel to a building, are to be con

St. 511; Manufacturing Co. v. Garven, 45 sidered in determining whether it has be- Ohio St. 290, 13 N. E. 493; Murdock v. Gifcome a fixture and part of the realty. That ford, 18 N. Y. 28; Manwaring v. Jenison, 61 the article is essential to the use of the Mich. 117, 27 N. W. 899; Balliett v. Humbuilding for the business for which it is phreys, 78 Ind. 388. In the case of Manuused is not the test by which to determine facturing Co. v. Garven, supra, the court whether or not it is a part of the realty. say: “It has generally been held in this "To change the character of an article from country that articles of machinery used in a a chattel to a fixture, there should be some factory for manufacturing purposes, only atpositive act and intent to that effect on the tached to the building to keep them steady part of the person annexing it to a building; in their places, so that they may be more and, if the intent is left in doubt upon an in

serviceable when in use, and that may be spection of the property itself, taking into removed without any essential injury to the consideration its nature, the mode, extent,

freehold or the articles themselves, are perpurpose, and object of its annexation, it sonal property, and do not pass by a convey. should be held to remain personal property. ance or mortgage of the freehold." And in Articles of machinery used in a manufactory Murdock v. Gifford, supra, it was said that do not become a part of the freehold when "all that part of the gearing or machinery they are only attached to the building for

which has special relation to the building the purpose of keeping them steadier, and in with which it is connected would belong to a manner best adapted to that purpose, so

the freehold, while an independent machine, that their use as chattels may be more ben

like a loom, which, if removed, still remains eficial, and are attached in such a way that

a loom, and can be used as such wherever it they may be removed without injury to the is wanted, and power can be applied to it, freehold or to the articles themselves as

will still retain its character of personalty.” chattels.” And in Keeler v. Keeler, 31 N. We do not think that mere adaptability of J. Eq. 181, the court says: “There appears machinery to use in the business which hapto have been no special adaptation of these pens to be conducted upon the realty is of machines to the place where used, nor any itself enough to give the character of realty preparation of a place to receive them. to the machinery. To constitute machinery They are suitable and proper to be there, and apparatus fixtures, it is not alone suffiif such instruments were required for their cient that they be placed in the shop or facproper work, but equally suitable and useful tory with the intent that they should remain elsewhere. They were movable in the build- there for permanent uše, but the intent must

1.39p.no.6-41

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be to make them a permanent accession to Appeal from superior court, King county; the freehold. We are not unmindful of the Mason Irwin, Judge. fact that there is much authority opposed to Action by Howard W. Baker and others the views herein expressed, but it is believed against the Washington Iron Works Compathat a review of the cases in detail would ny for breach of contract. Judgment for serve no useful purpose.

plaintiffs, and defendant appeals. On moRespondent insists, however, that the ap- tion to strike the statement of facts from pellant is not entitled to hold or claim any the files and affirm the judgment. Motion portion of the property here in dispute, for granted, and judgment affirmed. the reason that appellant's mortgage was not executed and recorded in compliance

Stratton, Lewis & Gilman and Ernest S. with the statute governing chattel mort

Lyons, for appellant. John Fairfield and gages. Section 1648, 1 Hill's Code, pro

Daniel T. Cross, for respondents. vides: “A mortgage of personal property is void as against creditors of the mortgagor or GORDON, J. Respondents move to strike subsequent purchaser, and incumbrances of the statement of facts certified to this the property for value and in good faith, un- court, and affirm the judgment of the court less it is accompanied by the affidavit of the below, for the reasons that said statemortgagor that it is made in good faith, and ment of facts was not filed in the cause, nor without any design to hinder, delay, or de- was a copy thereof served on respondents, fraud creditors, and it is acknowledged and within 30 days from the date of judgment, recorded in the same manner as is required the time for filing and serving the same not by law in conveyances of real property.” | laving been extended by stipulation of counAnd the following section requires that a sel or by order of the court, and no applicamortgage of personal property should be re- tion therefor having been made. The record corded in the office of the county auditor of shows that the verdict was rendered in the the county in which the mortgaged property case on the 16th day of May, 1893; that the is situated, in a book kept exclusively for judgment appealed from was entered on the that purpose. We think, however, that re- 19th day of May, 1893; and that the prospondent's contention in this regard is fully posed statement of facts was not served unmet by the case of Darland v. Levins, 1 til the 8th day of August, 1893, more than Wash, St. 582, 20 Pac. 309, in which the 60 days after entry of final judgment. It court held that the sole purpose of the stat. also appears from the record that a motion ute requiring chattel mortgages to be re- for new trial was served and filed on the corded is to give notice by the record to sub- 24th day of May, 1893, eight days after the sequent purchasers or mortgagees of the reception of the verdict, and five days after property; and what is said of the failure to the rendition of the judgment in the cause. record a chattel mortgage is applicable to On June 3, 1893, the motion for a new trial case where the mortgage is unaccom

was stricken from the calendar, and on July panied by the affidavit of the mortgagor pro

10, 1893, the motion was overruled. From vided by section 1648. Without such affida- an inspection of the entire record, it is clear vit it would be good as against the mort- that the time within which an appeal might gagor and all others, excepting "creditors of be taken from said judgment began to run the mortgagor or subsequent purchasers or

on May 19, 1893. The statute (section 13, incumbrances of the property for value."

Act March 8, 1893; Laws 1893, p. 116) proOther points urged in the respondent's brief

vides that the statement of facts must be are inapplicable to the record here presented,

filed and served within 30 days after the and for that reason we must decline to dis- time begins to run within which an appeal cuss them. The judgment and order ap

may be taken from a final judgment in the pealed from will be reversed.

cause, and further provides that the time

so prescribed may be enlarged for a period HOYT, C. J., and ANDERS, SCOTT, and

not exceeding 60 days in addition thereto by DUNBAR, JJ., concur.

stipulation of the parties, or by an order of the court or judge upon good cause shown, and upon notice to the adverse party. In

opposition to the respondents' motion, of 11 Wash. 335)

which motion the appellant has had abunBAKER et al. v. WASHINGTON IRON dant notice, there is no explanation offered, WORKS CO.

excuse given, or showing made, and, while (Supreme Court of Washington. March 6, the failure to file or serve a proposed state1895.)

ment within the time prescribed by the statAPPEAL-STRIKING STATEMENT FROM RECORD.

ute might not subject the statement to be When the statement of facts is filed aft

stricken in all cases, still we think, as preer the expiration of the 30 days within which sented here, in the absence of any explanan appeal may be taken under Act March 8,

atory showing, the motion should prevail. 1833, S 13, and the time has not been extended as provided in said section, in the absence of ex

Enos v. Wilcox, 3 Wash. 44, 28 Pac. 364. The cuse for the delay the statement will be strick- legal sufficiency of the complaint is not call. en from the files on motion.

ed in question, and, it being found suffi

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