On Petition for Rehearing.
White, J.This cause is reported in 67 Pac. 712. We further say that the filing of the complaint is but a step *346in the commencement of an action. Service of the summons, either before or after the filing of the complaint, is necessary to complete the commencement of the action; and, if the service is by publication, after the same is completed .the action is deemed to have been commenced at the time-the complaint is filed. The mere service of a summons on one of the spouses in an action to enforce a mechanic’s lien against community -property is not the commencement of an action as to the other spouse, unless followed pp By - a. service of the summons on such other spouse personally within the time given by § 5908, Bal. Oode, or byp-ublication within the time given by §4869, Id.
The respondent Powell, sends up with his petition a correct transcript of the return of service of summons on James Nolan, from which it appears that James Nolan was duly served, .so as to confer upon the court jurisdiction over him. The failure to show-the-service of the summons in the original action was through a mistake of the clerk in transcribing the return of such service; and as this was not called-to the attention of the respondent in the brief of the appellants, or otherwise, save in the opinion herein, the judgment of the respondent Powell should be, and the same is, affirmed, subject, however, to the payment out of the proceeds thereof to the Holland-Horr Mill Company of $235, the =amount of the lien of said last mentioned company.
The Holland-Horr Mill Company sends up with its petition an affidavit of service of summons and cross-complaint in this action on James Nolan. This affidavit, while purporting to be made on the 4th of September, 1900, was not filed in the court below until March 3, 1902, after the opinion was filed in this case. It does not purport to be indorsed upon or attached to any summons as required by sub*347division 2, § 4882, Bal. Code. Conceding that it states the facts, no excuse is shown for not filing this return before or at the time the action ivas tried. One of the errors assigned by the appellants was that the trial court erred in assuming jurisdiction of the lien claim of the Holland-Horr Mill Company, for the reason that the said mill company had not served James Nolan with summons or cross complaint, and the service on one of the spouses did not give the court jurisdiction,to give judgment against the community. The finding of the court that there had been such service was specifically excepted to. There was nothing in the record, as filed in this court, proving or tending to prove such service, or a service of the cross complaint. As there must be a further hearing of this case, we will allow the Holland-Horr Mill Company to file in the court below the summons in its action, with proof of service indorsed upon or attached thereto; and when this is done the court below is authorized to enter judgment in favor of said respondent for the amount of its lien, with costs and attorney’s fee of not exceeding $50. Otherwise the action as to said respondent is to- be dismissed.
It appearing from the proof of service sent up with the petition of the Griffith Heating & Plumbing Supply Company that James Nolan was duly served with summons in the action of P. J. Dullanty, what we have said in our opinion on this subject has no application, so far as service of the summons by this respondent is concerned. If the Griffith Heating & Plumbing Supply Company had not moved in the court below to be substituted for P. J. Dullanty, and had permitted . the action to proceed to judgment in the name of P. J. Dullanty, we would have affirmed the judgment, under the rule laid down in Box v. *348Kelso, 5 Wash. 360 (31 Pac. 973). But when a stranger to the record sets up the assignment of the claim, originally sued upon by another, and seeks judgment in his own name, a different question is presented. James Holán certainly had a right.to contest the assignment. He might have a counter claim against the assignee which he would be entitled to set up. He was unquestionably entitled to be advised as to the reasons why a stranger to the record should recover a' judgment against him. If he had been represented at the time the substitution ‘was made, as was Susie A. Nolan, supplemental pleadings might not have been necessary, but even then it would be the better practice. But not being represented, we do not see how the fact of the assignment, arising after the service of the Dullanty pleadings, should in any way bind him, unless this fact was brought to his attention by supplemental pleadings. His -default in failing to answer Dullanty’s complaint simply amounted to his consent that Dullanty might have judgment. He did not thereby consent that some one else, a stranger to the record at the time of his default, might have judgment. Under the circumstances of this case we do not think it should be dismissed for want of prosecution,- as provided in § 5908, Bal. Code:
This cause, as to the Griffith Heating & Plumbing Supply Company and as to the Holland-Horr Mill Company, is remanded to -the court below for further proceedings as herein and in the original opinion indicated. The judgment of F. M. Powell, as herein, provided, is affirmed. The said respondent to recover his costs on "this appeal. The appellants to recover costs of this appeal against the respondents, the Holland-Horr Mill Company and the Griffith Heating & Plumbing Supply Company.
Reavis, C. J., and Anders, Mount, Dunbar, Fullerton and Hadley, JJ.. concur.