MODIFICATION OF JUDGMENT-LIENS.

1. Code Civ. Proc. § 1397, providing that, when any judgment is modified, all liens obtained under it should be preserved to the modified judgment, applies to liens on personalty as well as realty.

2. Though the record shows that a former judgment was in form vacated, and a new one entered, yet where the new judgment is only for a small amount less than the other, and is otherwise the same, it should be treated as a modification of the former, so as to preserve liens acquired thereunder.

Appeal from superior court, Jefferson county; R. A. Ballinger, Judge.

Action by A. I. Smith against Richard De Lanty, sheriff, and another. There was a judgment for plaintiff, and defendants appeal. Reversed.

Warren Carroll, Chas. E. Patterson, and R. W. Jennings, for appellants. George H. Jones, for respondent.

HOYT, C. J. The title and right to possession of certain personal property situated in Jefferson county are involved in this action. Prior to March 9, 1894, such property belonged to and was in the possession of John Fitzpatrick and Alice Fitzpatrick, his wife. On that day it was levied upon by the sheriff, under an execution issued upon a judgment against said John and Alice Fitzpatrick in favor of William Bishop, one of the appellants. By virtue of such levy, the sheriff advertised the property for sale, and retained possession thereof until he made a further levy thereon, under another execution issued as hereinafter stated. While the sheriff was so in possession, the said John and Alice Fitzpatrick made a bill of sale of the property to A. I. Smith, the plaintiff in the action. This bill of sale was executed on the 31st day of March. On the 27th day of March, the sheriff was served with an order restraining him from proceeding in the service of the execution until the further order of the court. Thereafter, on the 2d day of April, such proceedings were had in the original action of Bishop v. Fitzpatrick that the judgment upon which the execution had issued was set aside, and a new one entered therein of the same force and effect as the prior one, except that the amount was reduced in the sum of $90. Execution was issued on the new judgment, and placed in the hands of the sheriff, who levied the same upon the property then in his hands by virtue of the former execution, which was then returned, with the statement of the facts as to its further service having been temporarily and afterwards permanently restrained.

The principal question for decision is as to the effect of the proceedings in the original action, subsequent to the levy of the arst execution, upon the lien thereby created upon the property in question. On the part of

the appellants, it is contended that the proceedings had were of the same legal effect as though the original judgment had been modified by striking therefrom the sum of $90, or the collection of that much of the entire amount restrained; while the contention on the part of the respondent is that since the first judgment was set aside, and further proceedings under the execution issued thereon permanently restrained, all rights flowing from such judgment were terminated, and that the claim of the appellants can date only from the time of the levy under the second execution, at which time the judgment debtors did not own the property. If the proceeding in the action upon the 2d day of April was a modification of the former judgment, the lien of the execution issued thereon before modification would continue and inure to the benefit of the lien created by a levy of the execution issued upon the judgment as modified; and give it the same force as though the levy thereunder had been made at the date of the levy under the former execution. See Code Proc. 1397.1

It is claimed by the respondent that the liens which are preserved to the modified judgment by the provisions of this section are those upon real estate, and not those upon personal property. But we are unable to find any warrant in the language used for such distinction, nor would a construction which makes such a distinction conform to our ideas of justice. If justice requires that a lien upon real property acquired under a judgment shall inure to the benefit of the lien when renewed under the modified judgment, there is no reason why one upon personal property should not have the same effect.

From what we have said, it must follow that, if the proceedings under consideration resulted in a modification of the former judgment, the lien of the execution upon the modified judgment is superior to the claim of title on the part of the plaintiff, for the reason that, when aided by the lien acquired under the former execution, it dates back to a time when the defendants in the execution had title to the property, and the plaintiff, Smith, had no claim whatever thereto.

The recitals in the record as to these proceedings are not as full and satisfactory as they might have been, but we are satisfied therefrom that the judgment entered on the 2d day of April was only a modification of the former one. It is true that in form the former judgment was set aside and vacated, and a new one entered; but when the fact that the original judgment was for over $2,300, and the new one was of the same tenure and effect, and for a sum only $90 less, is taken into consideration, justice re

1 Code Civ. Proc. § 1397, provides that, when a "judgment is modified, all liens and securities obtained under it shall be preserved to the modified judgment."

quires that the new should be treated as a modification of the old judgment for the purpose of protecting liens acquired thereunder. For that purpose the new judgment should be held to be a continuation of the old, except to the extent that it is substantially changed. When only a modification is sought, the usual practice is to vacate the old judgment, and enter a new one. Hence the fact that in form the old judgment was vacated, and a new one entered, will not warrant us in holding that the rights under the old one were forfeited upon its vacation. The undisputed proofs show that the lien under the execution, issued upon the first judgment, attached to the property on March 9th, and, in our opinion, the further undisputed proofs require us to hold that such lien remained in force, and inured to the benefit of the execution issued upon the new judgment. It follows that the lien under the execution levy was superior to the title of plaintiff, and that he was not entitled to the possession of the property.

The judgment will be reversed, and the cause remanded, with instructions to enter a judgment in favor of the defendants for the return of the property, or, if return cannot be had, for its value.

DUNBAR, ANDERS, SCOTT, and GORDON, JJ., concur.

(11 Wash. 712)

TATUM et al. v. BOYD et al. (Supreme Court of Washington. March 9, 1895.)

APPEAL-NOTICE OF FILING STATEMENT-DISMISSAL.

On failure of appellant to serve notice on appellee of the filing of the proposed statement of facts within 30 days after the entry of the judgment, no extension of time having been allowed, a motion to strike the statement from the record will be granted.

Appeal from superior court, Snohomish county; John C. Denney, Judge.

Action by H. L. Tatum and another against Joseph R. Boyd and others. There was a judgment for defendants, and plaintiffs appeal. Affirmed,

Woodward & Woodward and A. W. Frater, for appellants. Ault & Munns, for respondents Boyd, Stevens, and Dow. Hawks & Heffner, for respondent Ordway.

PER CURIAM. It appears from the record that the judgment in this case was rendered upon the verdict of a jury. It further appears that the proposed statement of facts was not served upon the opposite party until more than 30 days after the date of such entry, and that the time in which to make such service was not enlarged by the court. It follows that, under well-settled rules of prac tice, the motion to strike such statement from the record must be granted; and, it appearing from the brief of the appellants that none

of the errors assigned go to the pleadings in the action, the result of striking the statement will be that the judgment of the superior court must be affirmed.

(11 Wash. 377)

CHASE v. TACOMA BOX CO. et al. (Supreme Court of Washington. March 8, 1895.)

WHAT ARE FIXTURES MACHINERY CHATTEL MORTGAGES-FAILURE TO Record.

1. Machines connected by belting with the shafting in a building, which are fastened to the floor by screws or nails and bolts, and could be removed without impairing the freehold, and could be used for the purposes for which they were intended as well in any other building, and are constructed after fixed patterns and bought and sold in gross, are not fixtures.

2. A mortgagee claiming chattels as fixtures under a real-estate mortgage cannot complain that a subsequent mortgage on the chattels is not verified by the mortgagor, and recorded, as required by 1 Hill's Code, § 1648 et seq., as the statutory requirements are only for the protection of creditors of the mortgagor and subsequent purchasers and mortgagees.

Appeal from superior court, Pierce county; W. H. Pritchard, Judge.

Action by Herman L. Chase against Tacoma Box Company and others to foreclose a real-estate mortgage. Robert Wingate, as receiver of defendant Merchants' Bank of Tacoma, filed a petition claiming chattels on the land under a mortgage to the bank. Judgment was rendered for plaintiff, and defendant Wingate, receiver, appeals. Reversed.

Doolittle & Fogg, for appellant. Dunning & Pratt and N. C. Richards, for respondent.

GORDON, J. The subject-matter of this litigation is machinery and apparatus in a box factory located upon block 7,632, in a certain addition to the city of Tacoma. Both parties here are claiming the property under and by virtue of decrees of foreclosure of mortgages, of which mortgages respondent's is prior in point of time. The appellant bases his claim to the machinery in question on the fact that his mortgage describes the real estate, together with the machinery and apparatus thereon situate, and claims that the property is personal property, and does not pass with the realty, and that he is entitled to the same as personalty under and by virtue of the description of the property in his mortgage, which, after describing the land, is as follows: "And the machinery and apparatus upon said premises at the time of giving said mortgage." Appellant claims that these words show an express intention to convey what he contends is personal property, which was not conveyed under respondant's mortgage conveying the real estate, together with the tenements, hereditaments, and appurtenances thereunto belonging. There is no claim that appellant's mortgage was ever filed or recorded as a chattel mortgage. The court below sustained respond.

ent's motion to dismiss appellant's petition, and the appellant, having excepted to such ruling, prosecutes this appeal.

Of the major portion of the machinery and apparatus, the petition avers that "said machinery and apparatus can all be removed without injury to the freehold or to said machinery and apparatus; that there is no special adaptation of the real property to the said machinery and apparatus; that said machinery and apparatus are not attached to the walls of the said building, or in any way annexed in a permanent way to any part of said building; that said machinery and apparatus rest upon the floor of said building by means of iron legs, and are fastened to the floor, or to blocks set upon the floor, of said building, by screws or nails or bolts, for the purpose solely of steadying said machinery and apparatus when in use; and that said machinery and apparatus can be used for the purpose for which it was intended as well in any other place as where now located, and that said machinery and apparatus, although a portion thereof is connected with the shafting to said building by belting or otherwise, are all independent machines, complete in themselves, and that they are constructed after fixed patterns, and are solely implements bought and sold in gross, and in no way fixtures or part or parcel of the real estate, and that upon the removal of the said machinery and apparatus the value of the freehold would be unimpaired." Of the balance, consisting of chain blocks, belting, trucks, wrenches, tools, scales, safe, and stitching machines, etc., it is alleged that "none of it is affixed in any way or manner to the freehold." There is an immense mass of law learning upon the subject of fixtures, and the courts have striven to lay down some general rule by which the facts of each case might be tested, and the conclusion derived whether a particular thing, under certain circumstances, constituted a part of the realty or not; but no satisfactory rule has been devised, and probably never will be, owing to the difficulties inherent in the nature of the property itself. Between landlord and tenant many things are regarded as personal which might be considered a part of the realty as between vendor and vendee, mortgagor and mortgagee, or heir and executor. The older cases very generally hold to the idea that an actual physical annexation must be shown. But this strict rule of the old law has been much relaxed in favor of trade and manufacture, and the encouragement of new and constantly growing industries, and the doctrine of constructive annexation is now very generally, if not universally, recognized. And it is believed that any attempt to solve the question by applying the sole test of the character or extent of the actual annexation to the soil involves the question in many perplexing difficulties. In Johnson's Ex'r v. Wiseman, 4 Metc. (Ky.) 360, the court said: "The better opinion

* is in favor of viewing everything as a fixture which has been attached to the realty with a view to the purposes for which it is held or employed, however slight or temporary the connection between them. * ** The question whether chattels are to be regarded as fixtures depends less upon the manner of their annexation to the freehold than upon their own nature and their adaptation to the purposes for which they are used." In Helms v. Gilroy (Or.) 26 Pac. 851, the court say: "The weight of modern authority, keeping in mind the exceptions as to constructive annexation admitted by all the authorities to exist, seems to establish the doctrine that the true criterion of an irremovable fixture consists in the united application of several tests: (1) Real or constructive annexation of the article in question to the realty; (2) appropriation or adaptation to the use or purpose of that part of the realty with which it is connected; (3) the intention of the party making the annexation to make the article a permanent accession to the freehold, this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, and the policy of the law in relation thereto, the structure and mode of the annexation, and the purpose or use for which the annexation has been made." And we think that the "annexation" is not of necessity an absolute fastening or continued physical union in all cases. It is doubtful if any general rule can be formulated that will be applicable to all cases, and regard must be had to the particular circumstances of each case. The relationship existing between the parties, the nature of the article, and its use as connected with the use of the freehold, should not be lost sight of; but the annexation may be either actual or constructive, and the intention of the owner of the fee is often of the utmost importance in determining whether, in a given case, a chattel has become a fixture.

But, while the intention of the party affixing the machinery enters into the elements of each case, still such mere intention will not determine or alter its legal character; and whether or not, in a given case, it remains personalty or becomes a fixture must depend upon the facts and circumstances, and not on his opinion. "Movable machines, whose number and per

manency are contingent on the varying circumstances of the business, subject to its fluctuating conditions, and liable to be taken in or out, as exigencies may require, are different in nature and legal character from the steam engines, boilers, shafting, and other articles secured by masonry, ✦✦ designed to be permanent, and indispensable to the enjoyment of the freehold." Rogers v. Brokaw, 25 N. J. Eq. 497. In the case of Wolford v. Baxter, 33 Minn. 12, 21 N. W. 744, the court say: "While physical annexation is not indispensable, the adjudicated

cases are almost universally opposed to the idea of mere loose machinery or utensils, even where it is the main agent or principal thing in prosecuting the business to which the realty is adapted, being considered a part of the freehold for any purpose. To make it a fixture, it must not merely be essential to the business of the structure, but it must be attached to it in some way, or, at least, it must be mechanically fitted so as, in ordinary understanding, to constitute a part of the structure itself. It must be permanently attached to, or the component part of, some erection, structure, or machine which is attached to the freehold, and without which the erection, structure, or machine would be imperfect or incomplete. The intent that they should remain * * for permanent use is unimportant. Intent alone will not convert a chattel into a fixture." And this doctrine is reaffirmed in 35 Minn. 543, 29 N. W. 349, in the case of Farmers' Loan & Trust Co. v. Minneapolis Engine & Mach. Works, where it is held that machinery, to become part of the realty, must be either physically attached to it, or be, in ordinary understanding, a part of the building upon it; as where the building is constructed wholly or in part for the machinery, or the machinery is constructed for the building, or some part of it is fitted into it. In Hill v. Wentworth, 28 Vt. 429, it is held that not only the manner and extent, but the object and purposes, of the annexation of a chattel to a building, are to be considered in determining whether it has be come a fixture and part of the realty. That the article is essential to the use of the building for the business for which it is used is not the test by which to determine whether or not it is a part of the realty. "To change the character of an article from a chattel to a fixture, there should be some positive act and intent to that effect on the part of the person annexing it to a building; and, if the intent is left in doubt upon an inspection of the property itself, taking into consideration its nature, the mode, extent, purpose, and object of its annexation, it should be held to remain personal property. Articles of machinery used in a manufactory do not become a part of the freehold when they are only attached to the building for the purpose of keeping them steadier, and in a manner best adapted to that purpose, so that their use as chattels may be more beneficial, and are attached in such a way that they may be removed without injury to the freehold or to the articles themselves as chattels." And in Keeler v. Keeler, 31 N. J. Eq. 181, the court says: "There appears to have been no special adaptation of these machines to the place where used, nor any preparation of a place to receive them. They are suitable and proper to be there, if such instruments were required for their proper work, but equally suitable and useful elsewhere. They were movable in the buildv.39P.no.6-41

ing.

er

*

They were constructed after fixed patterns for all purchasers,-things in gross, mere implements, heavy and complicated tools. If they ceased to be used in this factory, they were movable without alteration, without detriment to the building, and could be used equally well in another place, provided with power to drive them." In Cherry v. Arthur, 5 Wash. 787, 32 Pac. 744, this court said: "In ascertaining wheth* a machine does become part of the realty, in favor of mortgagees, the rule is that the manner, purpose, and effect of annexation to the freehold must be regarded. If a building be erected for a definite purpose, or to enhance its value for occupation, whatever is built into it to further those objects becomes a part of it, even though there be no permanent fastening, such as would cause permanent injury if removed. But mere furniture, although some fastening be necessary to its advantageous use, is removable. Peculiarly subject to this rule are machines which can be used in one place as well as another, and which add nothing to the building, though they may be of advantage to the business conducted there." We are entirely satisfied with what is here said upon the subject, and think it best accords with reason and modern authority. Carpenter v. Walker, 140 Mass. 417, 5 N. E. 160; McConnell v. Blood, 123 Mass. 47; Wheeler. v. Bedell, 40 Mich. 693; Voorhees v. McGinnis, 48 N. Y. 278; Teaff v. Hewitt, 1 Ohio St. 511; Manufacturing Co. v. Garven, 45 Ohio St. 290, 13 N. E. 493; Murdock v. Gifford, 18 N. Y. 28; Manwaring v. Jenison, 61 Mich. 117, 27 N. W. 899; Balliett v. Humphreys, 78 Ind. 388. In the case of Manufacturing Co. v. Garven, supra, the court say: "It has generally been held in this country that articles of machinery used in a factory for manufacturing purposes, only attached to the building to keep them steady in their places, so that they may be more serviceable when in use, and that may be removed without any essential injury to the freehold or the articles themselves, are personal property, and do not pass by a conveyance or mortgage of the freehold." And in Murdock v. Gifford, supra, it was said that "all that part of the gearing or machinery which has special relation to the building with which it is connected would belong to the freehold, while an independent machine, like a loom, which, if removed, still remains a loom, and can be used as such wherever it is wanted, and power can be applied to it, will still retain its character of personalty." We do not think that mere adaptability of machinery to use in the business which happens to be conducted upon the realty is of itself enough to give the character of realty to the machinery. To constitute machinery and apparatus fixtures, it is not alone sufficient that they be placed in the shop or factory with the intent that they should remain there for permanent use, but the intent must

be to make them a permanent accession to the freehold. We are not unmindful of the fact that there is much authority opposed to the views herein expressed, but it is believed that a review of the cases in detail would serve no useful purpose.

Respondent insists, however, that the appellant is not entitled to hold or claim any portion of the property here in dispute, for the reason that appellant's mortgage was not executed and recorded in compliance with the statute governing chattel mortgages. Section 1648, 1 Hill's Code, provides: "A mortgage of personal property is void as against creditors of the mortgagor or subsequent purchaser, and incumbrances of the property for value and in good faith, unless it is accompanied by the affidavit of the mortgagor that it is made in good faith, and without any design to hinder, delay, or defraud creditors, and it is acknowledged and recorded in the same manner as is required by law in conveyances of real property." And the following section requires that a mortgage of personal property should be recorded in the office of the county auditor of the county in which the mortgaged property is situated, in a book kept exclusively for that purpose. We think, however, that respondent's contention in this regard is fully met by the case of Darland v. Levins, 1 Wash. St. 582, 20 Pac. 309, in which the court held that the sole purpose of the statute requiring chattel mortgages to be recorded is to give notice by the record to subsequent purchasers or mortgagees of the property; and what is said of the failure to record a chattel mortgage is applicable to a case where the mortgage is unaccompanied by the affidavit of the mortgagor provided by section 1648. Without such affidavit it would be good as against the mortgagor and all others, excepting "creditors of the mortgagor or subsequent purchasers or incumbrances of the property for value." Other points urged in the respondent's brief are inapplicable to the record here presented, and for that reason we must decline to discuss them. The judgment and order appealed from will be reversed.

Appeal from superior court, King county; Mason Irwin, Judge.

Action by Howard W. Baker and others against the Washington Iron Works Company for breach of contract. Judgment for plaintiffs, and defendant appeals. On motion to strike the statement of facts from the files and affirm the judgment. Motion granted, and judgment affirmed.

Stratton, Lewis & Gilman and Ernest S. Lyons, for appellant. John Fairfield and Daniel T. Cross, for respondents.

GORDON, J. Respondents move to strike the statement of facts certified to this court, and affirm the judgment of the court below, for the reasons that said statement of facts was not filed in the cause, nor was a copy thereof served on respondents, within 30 days from the date of judgment, the time for filing and serving the same not Iraving been extended by stipulation of counsel or by order of the court, and no application therefor having been made. The record shows that the verdict was rendered in the case on the 16th day of May, 1893; that the judgment appealed from was entered on the 19th day of May, 1893; and that the proposed statement of facts was not served until the 8th day of August, 1893, more than 60 days after entry of final judgment. It also appears from the record that a motion for new trial was served and filed on the 24th day of May, 1893, eight days after the reception of the verdict, and five days after the rendition of the judgment in the cause. On June 3, 1893, the motion for a new trial was stricken from the calendar, and on July 10, 1893, the motion was overruled. From an inspection of the entire record, it is clear that the time within which an appeal might be taken from said judgment began to run on May 19, 1893. The statute (section 13, Act March 8, 1893; Laws 1893, p. 116) provides that the statement of facts must be filed and served within 30 days after the time begins to run within which an appeal may be taken from a final judgment in the cause, and further provides that the time so prescribed may be enlarged for a period not exceeding 60 days in addition thereto by 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 which motion the appellant has had abundant notice, there is no explanation offered, excuse given, or showing made, and, while the failure to file or serve a proposed statement within the time prescribed by the statute might not subject the statement to be stricken in all cases, still we think, as presented here, in the absence of any explanatory showing, the motion should prevail. Enos v. Wilcox, 3 Wash. 44, 28 Pac. 364. The legal sufficiency of the complaint is not called in question, and, it being found suffi