Davis v. Treacy

HALL, J.

Appeal from judgment entered against plaintiff upon failure to amend his complaint after demurrer sustained.

The complaint is at least unique. It is an attempt to set forth a cause of action to foreclose a laborer’s lien, for labor performed in cleaning windows, the value of which is alleged

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to be $35, and for time lost of the value of $24.50, in attempting to collect plaintiff’s claim of $35 against defendant. Plaintiff also asks for attorneys’ fees and expenses of filing claim of lien, so that the total amount for which he asks judgment exclusive of costs is $136.15.

The demurrer was upon the grounds that the court had no jurisdiction of the subject of the action, misjoinder of causes of action, and that the complaint stated no cause of action.

The court sustained the demurrer upon the grounds of want of jurisdiction and misjoinder of causes of action.

The amount sued for is below the amount required to vest the superior court with jurisdiction by reason of the amount sued for (Code Civ. Proc., see. 76), so that unless the complaint states a cause of action to foreclose a lien under the mechanic’s lien law, the court was without jurisdiction of the cause.

The right to a mechanic’s lien is purely a creature of the statute; and in order to sustain an action to foreclose such lien it is essential that the complaint shall show a substantial compliance with the requirements of the statute.

(Wagner

v. Hansen, 103 Cal. 104, [37 Pac. 195].) Anyone claiming a lien under the mechanic’s lien law must file with the county recorder “a.claim containing a statement of his demand, after deducting all just credits and offsets, with the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed, or to whom he furnished the materials, with a statement of the terms, time given and conditions of his contract, and also a description of the property to be charged with the lien,” etc. (Code Civ. Proc., sec. 1187.)

The only attempt to show any compliance with this provision of the statute is contained in paragraph 11 of the complaint, and is in the following words: “That this action is brought in support of plaintiff’s lien upon said property of said defendant, which lien was filed on December 7, 1904, in the office of the Recorder of the City and County of San Francisco, State of California (said city being the place where said property is situated), duly verified by oath, and setting forth the description of said property, as follows”: (Here follows a description of the property sought to be charged.)