Hayward Lumber & Investment Co. v. Coast Federal Savings & Loan Ass'n

SCOTT (R. H.), J

pro

tem.—This

is an appeal by plaintiff from a judgment establishing and prorating the residue of a building loan among certain lien claimants.

The owners of certain real property obtained a loan to construct buildings thereon and gave their notes and two first trust deeds to secure them. The property was later sold under the trust deeds. An unexpended portion of the loan fund amounting to $4650.53 remained in the hands of defendant Coast Federal Savings and Loan Association of Los Angeles, which announced that it was ready and willing to pay the fund into court for distribution or to distribute

pro rata

among defendants and plaintiff in accordance with the court’s order. Certain lien claimants, including plaintiff and six defendants, Patten-Blinn Lumber Co., Dunns, Inc., Peterson & Golt, F. L. Jordon S. & D. Co., Monarch Screen & Mfg. Co. and Story & Sons, had filed their claims for mechanics’ liens and had filed suit to enforce them as provided in section 1190 of the Code of Civil Procedure. Five other defendants, Osipow Electric Supply Co. and Philip M. Haddox, Commercial Carpet Co., Enscoe, Hazen and Robertson, had filed mechanics’ liens but had not filed suit to enforce them. The trial court gave judgment dividing the balance of the loan fund

pro rata

among plaintiff and the eleven defendants named other than the Coast Federal.

Plaintiff on appeal urges that the lien claimants who had not pursued their claims by filing suit under sec

[213]

tion 1190 of the Code of Civil Procedure were not entitled to participate in such a division, and that the trial court should have divided the sum

pro rata

only among those who not only had filed a mechanic’s lien claim but also had brought suit to enforce it.

The Supreme Court of this state, in the case of