Ferger v. Gearhart

BARDIN, J.,

pro tern.—During the early part of the year of 1916, the People’s Ice Company, a corporation, was engaged in the construction, alteration, and repair of certain of its buildings upon its property in the city of Fresno, California. This work was undertaken by the corporation itself, as owner, under the superintendence of one of its employees. The corporation, falling into financial difficulties, was adjudicated a bankrupt in May of 1916. Among its creditors were several who had furnished materials for, and who had performed labor upon, the buildings referred to. Eleven claims of lien were filed under the provisions of the mechanic’s lien law (Code Civ. Proe., see. 1183 et seq.), and assignments were thereafter made to the plaintiff of the specific amounts due each claimant, and also of the rights of the lien claimants under their respective claims of lien.

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The appeal is taken from the portions of the judgment which are founded upon the claims of Swastika Lumber Co., for materials, Kielelguhr Company of America, for materials, Lewis Electric Company, for labor and materials, and Valley Roofing Company, for labor and materials. It is admitted in the brief of respondent that “no one of these four claims were filed within thirty (30) days after the claimant had ceased to furnish materials or labor for the buildings in question.” Such claims were, however, all filed within sixty days after each respective lien claimant had ceased to furnish materials or perform labor upon said buildings. No notice of completion of the work referred to or cessation of labor thereon was ever filed by the People’s Ice Company, but on March 21, 1916, the said owner notified all of said lien claimants that it had abandoned all further work on its said property. Judgment went for the

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plaintiff as such, assignee, for the unpaid balance, which judgment also directed the sale of the property to satisfy the aggregate amount found to be owing and unpaid.

The fundamental question presented for decision on this appeal is whether the claims of lien of the four lien claimants named were filed within the time limited by section 1187 of the Code of Civil Procedure as it existed prior to the amendment of 1919. This question is, so far as it relates to the claims of lien, in principle identical with that which was before the court in