Higgins v. Keyes

TAGGART, J.

Petition for a writ of mandate. Petitioner is the defendant owner in a consolidated mechanics’ lien foreclosure proceeding brought by the Los Angeles Pressed Brick Company et al., against petitioner and Alpeter,

[483]

Hall

&

Alpeter, contractors, in the superior court of Los Angeles county.

The findings in that ease recite that at the commencement of the trial in said proceeding petitioner “deposited in court the sum of $18,617.99 to abide the judgment of the court in these causes and to be applied in satisfaction of such judgment as the .court may direct.” Judgment was rendered in favor of said contractors against petitioner for the sum of $15,993.24 with interest; for personal judgments in various sums in favor of several of the lien claimants against the contractors ; for liens in favor of two of said claimants against the property of petitioner to secure the payment of their claims; and in favor of petitioner against both the lien and • claim of one of the claimants. The judgment directs the clerk to pay from the $18,617.99 deposited by petitioner the attorneys’ fees of the two claimants whose liens were declared valid, and to distribute and apply the $15,993.24 awarded to the contractors to the payment, first, of the two claims which were held to constitute liens against the premises, and next,

pro rata

of the claims of the other claimants who recovered judgments against the contractors.

Petitioner appealed from the judgment and two adverse orders of the trial court, and filed an undertaking on such appeals. The conditions of the undertaking and obligations of the sureties covered the costs on the three several appeals, a stay of execution from a money judgment in the sum awarded in favor of the contractors and against petitioner, and $1,000 —fixed by the judge of the court as the value of the use and occupation of the premises involved pending the appeal.

Demand was made upon the respondents and each of them, by petitioner, for a return of the money deposited by him, which demands were refused; whereupon he made application to the superior court for an order requiring the clerk to pay said fund to him, said petitioner. This application was denied without prejudice and this court is asked to issue its writ of mandate commanding the respondents to pay over said fund to petitioner.