(dissenting). So far as this was a special proceeding under Code Proa, § 1393, sub. 4, to vacate a judgment “for fraud practiced by the successful party in obtaining the judgment,” it was governed entirely by the statute. And thus far it was equitable in its nature and triable by the court. But the judgment was also attacked on the ground that the court had no jurisdiction to enter it, because it was a money judgment entered against contractors, in a suit to foreclose a mechanic’s lien, and as to that portion of the proceeding it was nothing but a naked question of law.
I maintain, in the first place, that the case presented by the petition on the ground of fraud has never, as yet, been tried, and that the judgment was, therefore, erroneous. Code Proc., §1395, provides for the filing of a verified petition stating the facts constituting a cause to vacate, and if the party asking the vacation is a defendant, the facts constituting a defense to the action. Such a petition was filed, the defenses being the want of jurisdiction in the court, and a settlement of all matters of account with the judgment plaintiff. Code Proa, §1396, provides that in such a proceeding all things shall be done, as near as can be, “as in an original action by ordinary proceedings,” except that the facts stated in the petition shall be deemed denied without answer.
*483Now in this case an answer was filed, and with it a lot of ex parte affidavits, which were answered by like ex parte affidavits for the petitioner, and they in turn were replied to. These affidavits, with the record in the original foreclosure suit, constitute the material facts according to the statement. Not a witness was sworn, nor any opportunity given to cross examine the makers of the affidavits, nor is there anything to show what or how many of the affidavits were considered by the court. But granting that all of the affidavits were considered, there was no trial of the question of fraud “as in an original action by ordinary proceedings;” on the contrary, the whole matter was treated as though it were a mere motion, which, under the statute, it is clearly not.
But whether a motion or not, I hold that the personal judgment rendered against the contractors in the mechanic’s lien case was absolutely void. This was the main point presented to this court, although the opinion does not notice it. The proceeding to secure and foreclose a mechanic’s lien is a purely special and statutory one, and there is not an intimation in the law that there shall be any result except the ascertainment of the amount due and the decree of sale. The contractor may be a proper party but he is not a necessary party, and if he is not made a defendant a decree would not be disturbed. The owner alone can be prejudiced by an omission of that kind. The general rules governing the joinder of causes of action absolutely forbid that a suit in rem against the land of one party should be joined with another for a money demand on contract against a different party. On this point I shall only cite Phillips on Mechanics’ Liens, § 397.
The case of Hildebrandt v. Savage, 4 Wash. 524 (30 Pac. Rep. 643), furnishes no precedent for such a judgment. That was the foreclosure of the contractor’s lien against the owner, a case where there would be some log*484ical reason in determining all the matters at issue between those parties, growing out of the building contract, in one suit, the fact that the owner may be tricked out of his right to a jury trial being the main objection to such a proceeding.
In Stetson & Post Mill Co. v. McDonald, 5 Wash. 496 (32 Pac. Rep. 108), this court directed a judgment against contractor McDonald to be affirmed, and the same judgment made to include his partner Docking. Whether this would have been done had the court’s attention been called to the point, I am unable to say; but the fact is that that case was heard mainly upon the sufficiency of the lien notice, the respondents contenting themselves, so far as the personal judgment was concerned, with the citation of Eisenbeis v. Wakeman, 3 Wash. 534 (28 Pac. Rep. 923), in support of the position that a jury trial was the contractor’s right. There was certainly no intention in the Stetson case to overrule the Eisenbeis case, and when in the latter it was sajd that there was no power in the court to render a personal judgment against the contractor, I think it was understood that want of jurisdiction was at the basis of the want of power; and if there was no jurisdiction to render a personal judgment in the special proceeding, then the judgment entered was void. We might just as well say that jurisdiction could be acquired to compel the delivery of specific personal property in a summary proceeding in forcible entry as to sustain this void judgment.
Anders, J. — I concur in the above.