Klimm v. Henry Cowell Lime & Cement Co.

BEASLY, J.,

pro tem.

This is a consolidated action for the foreclosure of certain mechanics’ liens against the property of defendant Henry Cowell Lime and Cement Company. It resulted in a judgment in favor of the lien claimants for the 'amounts of their respective claims, with interest at the legal rate from November 15, 1914, the date found by the court to be the date of completion, and for the foreclosure of the liens as prayed. The defendant appeals.

The liens were all perfected according to law and filed in time. Some outstanding facts of the case are of interest. The defendant, Henry Cowell Lime and Cement Company, entered into a contract with/Day & Sons to erect and complete a building for seventy thousand dollars. At the trial of this action it was agreed by all the parties that the building was completed on November 15, 1914, and the court found that the building was in fact completed on or about that date. Sufficient funds were due to the contractor from the defendant at the time of the trial to pay all these claims, with the interest allowed by the court. The contractor did not defend against the claims but defaulted. It was proven at the trial that Day & Sons did not dispute the claims at all, and it does not appear that the Cement Company disputes any of the foregoing facts. It appeared at the trial, also, that Day & Sons gave a general order to the Cement Company to settle all of these claims. At the outset of the trial its attorney stated to the court that he had placed the matter before his client, and- advised it that the trial was to be had on that day, and that his client had furnished him with no defense to the action.

In face of this rather extraordinary record it is now claimed by the Cement Company that the claims of lien were not filed in time, as they were filed more than thirty days after completion; but no notice of completion was filed, so the lien claimants had ninety days after actual completion within

[241]

which to file their claims, and the claims were on file within this period. (Code Civ. Proc., sec. 1187.)

Another ground urged for reversal is that it was averred in the complaints and found by the court that the building was completed on or about the fifteenth day of November, 1911; and it is contended that this averment is not sufficiently certain, but that the exact date of completion should have been alleged and found. The defendant raised this point by demurrer to the complaints, and cites