Martin v. Goggin

BARNARD, P. J.

This is an action to foreclose a mechanic’s lien. In September, 1947, Charles F. Doyle and Gladys S. Doyle deeded a parcel of real property in Riverside County to two partners. The plaintiffs furnished materials and labor used in constructing improvements on this real property and filed claims of mechanic’s liens on August 5, 1948, and September 24, 1948.

[689]

On October 12, 1948, these partners, as a partnership, and individually, instituted a proceeding for an arrangement' in the United States District Court under chapter 11 ■ of . the Bankruptcy Act (11 U.S.C.A. §§ 701 to 799), and thereafter the defendant Goggin was appointed trustee of their estates^ On April 24, 1950, these plaintiffs obtained an order, from the United States District Court authorizing them • to : bring this action against the trustee, and such other persons as they deemed necessary. This action was commenced on July 28, 1950. At that time the bankruptcy proceeding was still pending, and no order denying a discharge had been entered and no right to a discharge had been waived or lost. . -

The complaint in this action named only the trustee, the Doyles, and a title company as trustee; as, defendants. (Apparently, the Doyles held a trust deed with the title company as trustee.) In addition to the above facts the complaint alleged that the Doyles and the title company claimed to have some lien upon the property; that this lien, if any, was inferior to and subject to the lien of the plaintiffsand that the time within which to foreclose the plaintiffs’- lien, as provided by sections 356 and 1190, Code of Civil' Procedure, has been suspended by the provisions of section 11(f) of the Bankruptcy Act. The prayer was for a judgment against the defendants for the amounts claimed due to the plaintiffs, and for a foreclosure of the plaintiffs’ lien.

The trustee did not appear. The Doyles demurred- on the ground that the action was barred by the provisions of section 1190, Code of Civil Procedure. The court sustained this demurrer without leave to amend, and entered a judgment in favor of the Doyles in which it was decreed that the plaintiffs’ cause of action- is barred by the provisions of section 1190 of the Code of Civil Procedure.

On this appeal from the judgment, the sole issue presented is whether or not the time within which this action could be commenced has been indefinitely, extended by a 1938 amendment to section 11(f) of the Bankruptcy Act (11 U.S.C.A. §29f). That amendment (29f) provides in part that the operation of any statute of limitations of -.any state, affecting the provable debts of a bankrupt, shall be suspended during the period from the filing of the bankruptcy petition until 30 days after the entry of an order denying a discharge, or the loss of a right to a discharge, or the dismissal of the bankruptcy proceeding, whichever first occurs. The appellants contend that section' 1190 of our code