Hundley v. Marinkovich

SCHOTTKY, J. pro tem.

This is an appeal upon the judgment roll alone, in an action to enforce a materialman’s lien for materials furnished by appellants to the contractor, and used in the construction of an apartment house on the property of respondents Marinkovich.

The trial court found that on May 12, 1937, respondents Marinkovich entered into a contract with one Vukieevich, as contractor, for the construction of an apartment house, and that respondent Maryland Casualty Company executed the usual surety bond for the faithful performance of said contract, and the payment for labor and materials used in connection therewith.

The findings of the court then proceed:

That the construction of the said building was completed on or before the 9th day of November, 1939, and on or prior to the 9th day of November, 1939, the labor ceased on the construction of the said building, and the said building was delivered by the contractor to the owners, and the said owners entered into possession thereof and entered into the actual occupancy of the said property by themselves and their subtenants. That the said owners, within ten days after the completion of the said contract and work of improvement, and on the 9th day of November, 1939, did file for record in the office of the county recorder of the county where the property is situated, a notice setting forth the date the said

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work was completed, and on which cessation of labor occurred, together with their names, addresses and the nature of their title, and a description of the property sufficient for identification, together with the name of the contractor, which notice was verified by the said owners, and they duly paid the fee for recording the same. That at the time that the said notice was recorded, the said construction had been completed, said building had been accepted and occupied by the owners, and there had been a cessation of labor on the said building, and no labor was subsequently employed in the construction of said building.

The trial court found further that appellants did not, within thirty days after the completion of such work of improvement as a whole, file any claim of lien or give any notice to the surety, and that the only notice or claim of lien ever filed by appellants was filed on the 21st day of December, 1939, more than thirty days after the filing of said notice of completion, and after the cessation of labor on said building, and after occupancy and use of said property by the owners, and after the acceptance of said work and improvement by the owners; that during the course of construction, and before respondents Marinkovich accepted the building, appellants furnished materials to the contractor Vukicevich, of the value of, $788.94, which materials were delivered between August 26, 1939, and November 8, 1939; that appellants on November 29, 1939, furnished the contractor “with a certain part of a lock of the value of $4.12 to replace a defective part of a lock installed in the construction of said building. The said portion of said lock was thereafter installed in the lock in said building, but the same constituted no part of the construction of said building”; that on December 21, 1939, appellants recorded a claim of lien “for materials furnished in the sum of $793.06, but said notice of lien was not recorded within thirty days after the completion of said building, and was not recorded within thirty days of the last delivery of material used in the construction of said building, but was recorded within thirty days after the furnishing of said material used to replace a defective portion of a lock of said building”; that appellants’ cause of action to enforce a lien upon said property is barred by the provisions of sections 1183 and 1187 of the Code of Civil Procedure, excepting as to a lien for said sum of $4.12, which said sum the respondents paid into court for the benefit of appellants.