Union Tank & Pipe Co. v. Mammoth Oil Co.

OGDEN, J.,

pro tem

.

This is an action to foreclose a mechanic’s lien upon real property. The two defendants other than respondents having defaulted, judgment was entered in favor of appellant as to them. Respondents pleaded the provisions of section 1190 of the Code of Civil Procedure as a defense to appellant’s cause of action as against them, which plea was sustained by the trial court and judgment

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accordingly entered in favor of respondents. From this portion of the judgment plaintiff appeals.

The claim of lien was filed on September 10, 1930. On December 3, 1930, well within the period of ninety days thereafter prescribed by section 1190 of the Code of Civil Procedure, the original complaint in the action was filed naming as party defendants the Mammoth Oil Company, Ltd., Signal Oil and Gas Company, Ltd., and as fictitious defendants several Does. With respect to the latter defendants, it was alleged in the usual form that they claimed some interest in the premises either as owners or otherwise, that their true names and the exact nature of their interest were unknown and that when ascertained request to amend would be made. Summons was issued thereon, served upon the two defendant companies and filed. Thereafter, on December 23, 1930, a date beyond the ninety-day period, appellant filed an amended complaint naming as party defendants the respondents as the owners in fee of the property and in addition thereto the same defendants named in the original pleading with the same allegations in respect to the fictitiously named defendants. An

alias

summons was issued thereon and respondents served therewith, together with a copy of the amended complaint, to which they answered.

The record discloses no request for, or the making of, any order substituting the names of respondents in place of the fictitiously named defendants in the original complaint. On the contrary, the action was dismissed as to all fictitious defendants at the commencement of the trial. Section 1190 of the Code of Civil Procedure is a statute of limitations providing the time within which an action may be brought to enforce a mechanic’s lien