Mason & Assocs., Inc. v. Guarantee Sav. & Loan Ass'n of Livermore Valley

SHOEMAKER, P. J.

On March 1, 1966, plaintiff Mason & Associates, Inc., filed a complaint to foreclose a mechanic’s lien for certain' engineering services and to obtain damages for breach of the contracts pursuant to which such services were performed. The complaint named as defendants Golden City Land Company, A. L. Damon and five Does.

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Plaintiff served summons upon the two named defendants and thereafter, on May 12, 1966, took the default of said defendants. On December 1, 1966, a default judgment was entered in favor of plaintiff and against the two named defendants. Said judgment foreclosed the mechanic’s lien and awarded plaintiff a money judgment in the amount prayed for in the complaint. No appeal was taken from the judgment, and the same became final.

On June 30, 1967, without the permission of the court, plaintiff filed an amendment to its complaint and thereby sought to substitute in place of the fictitious defendants four individuals or companies: Guarantee Savings & Loan Association of Livermore Valley, A. Carson Conner, Jacob Schley, and Western Title Guaranty Company, Alameda County Division.

On July 10, 1967, all four parties purportedly substituted as defendants filed a motion to quash summons on the ground that the court lacked jurisdiction. On August 7, 1967, after hearing, the court granted the motion to quash. Plaintiff appeals from said order.

Plaintiff argues extensively that a mechanic’s lien claimant has two separate and distinct remedies and is entitled both to foreclose his lien and to obtain a personal judgment on the underlying debt. Plaintiff also relies upon the rule that a party substitutéd in place of a fictitiously named defendant is deemed a party to the action from the date of its commencement for purposes of the statute of limitations. However, neither rule has any bearing upon the sole issue before this court—-whether the trial court did or did not possess jurisdiction over the action on the date when plaintiff attempted to amend its complaint to bring in the four additional defendants.

Code of Civil Procedure, section 1049, provides that “An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, . . . ’ ’