Remington v. Mulholland

[480]

SPENCE, J.

This is an appeal by certain defendants from a portion of the same judgment which we had under consideration in

E. K. Wood Lumber Co.

v.

Mulholland,

(No. 8071)

ante,

p. 475 [5 Pac. (2d) 669], the opinion in which has been this day filed. The appealing defendants, as holders of the deeds of trust and as purchasers at the foreclosure sale under the second deed of trust, appeal from that portion of the judgment in which it was decreed that plaintiff Remington was entitled to enforce a mechanic’s lien in the sum of $1800 and that said lien was “prior and superior to the claims and demands of the other parties to the action”.

We will not repeat the facts set forth in the opinion above mentioned nor do we deem it necessary to discuss all of the grounds here urged for a reversal of the portion of the judgment appealed from. Appellants contend that the uncontradicted testimony of respondent Remington showed that there had been a cessation of labor for more than thirty days, to wit, from about June 1, 1926, until some time in September, 1926, and as respondent’s lien was not filed until February 8, 1927, it did not date back further than the time when work was resumed in September, 1926, which was several months after the deeds of trust had been recorded. In other words, while the building was not actually completed until late in December, 1926, appellants contend that under section 1187 of the Code of Civil Procedure, the cessation of labor for a period of thirty days starting on or about June 1, 1926, constituted a “completion” within the meaning of that section and that liens not filed within the time prescribed after such cessation of labor could not in any event have priority over the deeds of trust recorded on March 18, 1926. In our opinion this contention must be sustained.

The uncontradicted testimony of respondent was as follows : “The building was stopped at one time, construction on it was stopped at one time, and the building bills were settled before it was started up again.” Q. “How long was the building stopped?” A. “Oh, probably two months or more; I don’t remember just exactly without I could look at my time book.” Q. “Can you give the approximate date that the work was stopped?” A. “Yes, something