Swanson v. White

Wright, J.

(dissenting) — The question herein is priority of rights as between a lessor of personal property and the lessor of real property who is claiming a landlord’s lien, as provided in RCW 60.72.010.

There are three parties involved. Noel H. White and Joan C. White, his wife, doing business as Executive Services, are the tenants. C. A. Swanson, P. Edward Dean, Jr., and Samuel M. Hess doing business as Northwest Properties are the landlords. Leasing for Industry Corporation is the owner and lessor of personal property which is the subject of this litigation.

On February 24, 1969, respondents, Northwest Properties (Northwest), leased to defendants, Executive Services (Executive), by a written lease, suites 10 and 205 in the building located at 700-112th N.E. in Bellevue, King County, Washington. The monthly rentals reserved were $864.20 and $908.70 respectively. It appears from the terms of the lease that Executive was organized to provide personnel services.

In March, April and May 1969, and in February of 1970, Executive entered into 10 leases by which Executive secured possession of office equipment and other items of personal property. Appellant, Leasing for Industry Corporation (Leasing), was the lessor of the personal property.

Apparently, Executive did not prosper. Executive defaulted in payment of rents to Northwest for the months of October, November and December 1970. Consequently, Northwest brought this action against Executive on December 30,1970, to recover judgment for all unpaid rents. In its complaint, Northwest claimed a landlord’s lien by virtue of RCW 60.72.010 on all personal property in the office suites leased to Executive, including that personal property lo*185cated in such suites which is owned by Leasing and which had been leased by Leasing to Executive.

On February 3, 1971, after Executive had failed to make an appearance in the action, findings of fact, conclusions of law and judgment by default were entered against Executive. The findings of fact and judgment expressly reserved the question of the priority of Northwest’s claimed landlord’s lien over the claim of interest by Leasing in the personal property in question.

On February 11, 1971, Northwest filed a motion for summary judgment against Leasing seeking to have its landlord’s lien on the personal property located in the office suites declared to be superior to all interest of Leasing therein, and further seeking foreclosure of such lien and sale of the property in satisfaction of Northwest’s judgment against Executive for unpaid rents in the sum of $3,545.82. Leasing filed a countermotion for summary judgment seeking dismissal of Northwest’s complaint on the ground that the landlord’s lien did not attach to property owned by a bailor-lessor on a tenant’s premises pursuant to a valid bailment or chattel lease.

The King County Superior Court granted Northwest’s motion for summary judgment and denied that of Leasing. Leasing appealed to Division One of the Court of Appeals. Its appeal was removed to the Supreme Court by order of the Supreme Court.

Leasing attacks RCW 60.72.010 as being unconstitutional both under the equal protection provisions and the due process provisions of the state and federal constitutions. Those contentions were not raised in the trial court. In civil cases we have consistently adhered to the rule that errors cannot be raised on appeal if the matter was not urged in the trial court. Washington Optometric Ass’n, Inc. v. County of Pierce, 73 Wn.2d 445, 438 P.2d 861 (1968); State ex rel. Cosmopolis Consolidated School Dist. 99 v. Bruno. 61 Wn.2d 461, 378 P.2d 691 (1963); Long v. Odell, 60 Wn.2d 151, 372 P.2d 548 (1962). An exception to that rule exists if the complaint does not state a cause of action or if the *186matter goes to the jurisdiction of the court. ROA 1-43. The exceptions are not applicable here. We, therefore, cannot consider the constitutional questions.

Leasing likewise raises a question of statutory construction. It is contended by Leasing that the legislature did not intend to impose a lien upon personal property of one other than the tenant.

Legislative intent must be found first in the words of the statute itself, if possible. Martin v. Aleinikoff, 63 Wn.2d 842, 389 P.2d 422 (1964); Schneider v. Forcier, 67 Wn.2d 161, 406 P.2d 935 (1965).

RCW 60.72.010 provides, in part:

Any person to whom rent may be due, his executors, administrators, or assigns, shall have a lien for such rent upon personal property which has been used or kept on the rented premises by the tenant, except property of third persons delivered to or left with the tenant for storage, repair, manufacture, or sale, or under conditional bills of sale duly filed, and such property as is exempt from execution by law. Such liens for rent shall be paramount to, and have preference over, all other liens except liens for taxes, general and special liens of labor, and liens of mortgages duly recorded prior to the tenancy.

The language of the statute is plain upon its face. It makes certain exceptions only. It must, therefore, be presumed the legislature intended to make all other personal property upon the leased premises subject to the landlord’s lien. State ex rel. Port of Seattle v. Department of Pub. Serv., 1 Wn.2d 102, 95 P.2d 1007 (1939).

The statute was so construed in Harrison v. National Cash Register Co., 196 Wash. 83, 88, 82 P.2d 136 (1938), wherein the court said, in part:

Our statute, quoted above, specifically makes all property on the premises subject to a landlord’s lien unless the property comes within one of the excepted classes, such as property sold under conditional sales contract if such contract has been executed pursuant to the statute and filed as the statute requires.

*187Much is said about the result being harsh if the landlord’s lien be applied to leased personal property. Such liens are statutory. No constitutional issue being validly before this court, our only responsibility is to correctly interpret the statute. The wisdom of statutes is not subject to judicial review. State v. Carey, 4 Wash. 424, 30 P. 729 (1892); Petstel, Inc. v. County of King, 77 Wn.2d 144, 459 P.2d 937 (1969); School Directors v. Department of Labor and Indus., 82 Wn.2d 367, 510 P.2d 818 (1973).

In any event the imagined harshness is largely a matter which will not survive critical examination. Every lawsuit has the potential of one party or the other losing. Many means are available to the lessor of personal property to protect against the hazard of a landlord’s lien. One engaging in the business of leasing personal property must be presumed to know the law affecting that business, and certainly knows where the leased personalty will be kept and used. The landlord, on the other hand, has no protection for his right to receive the rent except the landlord’s lien.

The judgment of the trial court ought to be affirmed.

Hale, C.J., and Stafford, J., concur with Wright, J.

Petition for rehearing denied January 23, 1974.