Bellingham Bay Lumber Co. v. Western Amusement Co.

RICHARDS, J.

This is an action to foreclose a material-man’s lien. Rudolph Spreckels was the owner of the property sought to be impressed with the plaintiff’s lien at the time of the erection of the building for which the plaintiff’s materials were supplied to the Western Amusement Company, a sub-lessee of said Spreckels, by whom the building was being erected. On March 30, 1908, the plaintiff filed its claim of lien against the building and premises for material furnished by it. On April 13, 1908, Rudolph Spreckels conveyed the property affected by said lien to the Realty & Rebuilding Company, a corporation, the deed evidencing such conveyance being recorded on May 11, 1908. On June 27, 1908, this action was commenced for the foreclosure of said lien. In the complaint then filed Rudolph Spreckels was made one of the

[516]

defendants, and was alleged to be the owner in fee of' the premises subject to the plaintiff’s lien. On February 15, 1909, an amended complaint was filed in which the same averments appear. The Realty & Rebuilding Company was not made a party by name in either of these complaints, but several fictitious names were given as defendants with the usual averment and prayer that as the true names of said defendants were discovered they might be inserted with proper averments in the complaint. On April 30, 1909, the defendant Spreckels filed his answer to the amended complaint, wherein, after denying practically all of its other averments, he also denied that he was the owner of the premises in question subsequent to the twenty-third day of April, 1908, upon which date tie alleged that he conveyed all of his right, title, and interest in the said premises to the Realty & Rebuilding Company. On June 19, 1911, the Realty & Rebuilding. Company was served with summons in the city and county of San Francisco under the name of “First Doe,” one of the fictitious defendants. On July 10, 1911, the case came on for trial. The time of the Realty & Rebuilding Company within which to appear after service of summons had expired but as yet its default had not been entered. On July 22, 1911, the default of the Realty & Rebuilding Company was entered by the court upon plaintiff’s motion. The plaintiff, however, did not at any time formally amend its complaint by the insertion of the name of the Realty & Rebuilding Company therein in place of one of the fictitious defendants. On July 24, 1911, the Realty & Rebuilding Company filed and served separate notices of two motions, to be heard on the following day. One of these was a notice of motion to dismiss the action as to said Realty & Rebuilding Company upon the ground that the summons had not been served and a return thereon made within three years after the commencement of the action. The other notice was of a motion for an order relieving said Realty & Rebuilding Company from its default upon the ground of its mistake, inadvertence, surprise, and excusable neglect. Upon the hearing of these two motions on the following day the attorney for the Realty & Rebuilding Company stated in open 'court that it made no point on the motion for an order relieving it from its default but stood solely upon its motion to dismiss the action. This latter motion was then argued and submitted to the court for decision. On July 31, 1911, the