Trimlett v. De Coursey

CONREY, P. J.

In this action the plaintiffs are seeking to enforce a lien for the value of labor and materials furnished by them, under a contract with the defendant for

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alterations and repairs upon a dwelling-house of the defendant situated on a certain lot owned by her in the city of Los Angeles. When the contract had been partly performed the plaintiffs ceased work thereunder. This abandonment of the contract was with the consent of the defendant. From a judgment in favor of the plaintiffs and from an order denying defendant’s motion for a new trial, the defendant appeals.

On behalf of appellant it is claimed that the complaint does not state facts sufficient to constitute a cause of action, for the reason that the notice of claim of lien of the plaintiffs was filed on December 8, 1911, whereas they ceased work on the building on September 23, 1911. For the respondents it is answered that the complaint also shows the filing of a sufficient notice by the plaintiffs on November 21, 1911, this being only 59 days after September 23d.

We think that the filing of notice on November 21st was within due time. Both parties rely upon section 1187 of the Code of Civil Procedure, as amended in 1911, [Stats. 1911, p. 1316], which in part reads as follows: “Every original contractor, claiming the benefit of this chapter, within sixty days after the completion of his contract, and every person save the original contractor claiming the benefit of this chapter, within thirty days after he has ceased to labor or has ceased to furnish materials, or both; or at his option, within thirty days after the completion of the original contract, if any, under which he was employed, must file for record with the county recorder of the county or city and county in which such property or some part thereof is situated, a claim of lien . . . ; and, in all cases any of the following shall be deemed equivalent to a completion for all the purposes of this chapter: The occupation or use of a building, improvement, or structure, by the owner, or his representative; or the acceptance by said owner or said agent, of such building, improvement, or structure, or cessation from labor for thirty days upon any contract or upon any building, improvement or structure or the alteration, addition to, or repair thereof;