Case v. Kirkwood

BARNARD, P. J.

This is an appeal from an order denying a motion for a change of venue. The action is one to foreclose a mechanic’s lien on certain real property in the county of Riverside. The complaint also asked for a personal judgment against the appellants for the amount of the debt which was claimed to be secured by the lien. The only question presented is as to whether these appellants have a right to have the action as against them tried in the county of their residence, it being conceded that they are and were residents of the county of Los Angeles.

It is contended that the cause of action against the appellants is a personal one, and that it is separate and ■distinct from another cause of action to foreclose a mechanic’s lien, as set up against the other defendants. In the complaint it is alleged that the appellants ordered the

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work performed and agreed to pay for the same. Because it is also alleged in the complaint, on information and belief, that another one of the defendants is the owner and reputed owner of the real property described, it is argued that, in fact, a cause of action for the foreclosure of a mechanic’s lien as against the owner of the property, is joined with another cause of action for the recovery of the contract price of the work from the appellants. Apellants contend that this latter cause of action is entirely separate and distinct from the former; that it is a personal action, so far as they are concerned; and that they are entitled to have it removed to the county of their residence under section 395 of the Code of Civil Procedure. They rely on such cases as

Sheeley

v.

Jones,

192 Cal. 256 [219 Pac. 744], and

Brown

v.

Happy Valley Fruit Growers, Inc.,

206 Cal. 515 [274 Pac. 977].

The cases cited do not apply here, since a different situation is presented by the record before us, and the supposed two causes of action are neither separate and distinct as between themselves nor as between the appellants and the other defendants. While the complaint alleges that another defendant is the owner and reputed owner of the land on which it is sought to establish a lien, it also alleges that these appellants employed the respondent to do the work in question, agreeing to pay him a specific sum therefor upon the completion of the work; that the work was done in accordance with the agreement; that a notice of claim of lien was duly recorded; and that all of the defendants, including the appellants, have or claim to have some right, title or interest in and to the premises in question, which rights, titles or interests are subsequent to and subject to respondent’s lien. The. prayer not only seeks a personal judgment against the appellants for the amount claimed, but asks that it be declared that the respondent has a lien on the land for that amount; that the interest in the land claimed by each of the defendants, including the appellants, be declared to be subordinate to respondent’s lien; that the land be sold; and that the interests of the appellants in the land be foreclosed.