People v. Moxley

ALLEN, P. J.

Defendant and appellant was informed against for the crime of obtaining money by false pretenses, and convicted. He appeals from the judgment and from an order denying a new trial.

The principal question presented upon this appeal relates to the sufficiency of the information. There is no question raised as to the sufficiency of this information, other than that involved in a determination of the question as to when the liens of mechanics and materialmen attach. It is the contention of appellant that, notwithstanding materialmen and mechanics had provided material and labor in the construction of houses upon the described premises, which had been unliquidated, still liens do not attach until notice of lien is filed in the recorder’s office, and the information in this case clearly showing that such notices of lien were not filed until after the representations were made and the money procured upon a reliance thereon, the statements and representations, therefore, 'were not shown to be untrue, and that no offense was charged. We are of opinion that appellant’s contention cannot be sustained. The lien of a mechanic or materialman is a constitutional right and attaches to the structure as the material is furnished or labor performed. The statutory procedure enacted for the enforcement of such right has reference only to the remedy. It is true that if notices of lien be not recorded within the specified time, the lien is not enforceable. The lien, however, created by the constitution, cannot be made subordinate to or dependent upon any legislative act. It exists with all of its force at all times between the furnishing of the material or the performing of the labor, and the expiration of the time within which such notices of lien may be filed. With reference to these liens, the only power the' legislature possesses is to obey the mandate of the constitution by providing means for the enforcement of the liens existing by virtue of the provisions of the constitution. The information, then, in this case, showing that under the constitution liens to the amount of $6,000 existed against this

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property at the date of the representations, and that subsequently, and within the statutory time, notices of "lien were filed and recorded, sufficiently avers the falsity of the representations. As we have before said, conceding the falsity of the representations, no other question is raised as to the sufficiency of the information, either in the matters relating to their making, or in declaring their falsity. Appellant cites