Mox, Inc. v. Leventhal

California Court of Appeal Feb 14, 1928 No. Docket No. 3397.Published

Before: Thompson

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Holding. The court held that the statutory period for commencing a mechanic's lien foreclosure action is extended when the final day falls on a holiday or Sunday, allowing the action to be filed on the following business day.

Issues

Whether the general rule for computing time under the Code of Civil Procedure applies to the mechanic's lien foreclosure limitation period.
Whether a mechanic's lien foreclosure action filed on the day following a holiday is timely when the statutory ninety-day period expires on that holiday.

Disposition. reversed

Quotations verified verbatim against the opinion

“The general rule is that when the last day for the performance of an act provided by law falls upon a Sunday or a holiday, that day is excluded in the computation of time, and the act may be performed on the following day.”

[255]

THOMPSON (R. L.), J.,

pro tem.

This is an appeal from a judgment in an action to foreclose a mechanic’s lien which was rendered against plaintiff after a demurrer to the complaint had been sustained without leave to amend.

The complaint alleged that the notice of lien upon which the action was based was filed pursuant to section 1187 of the Code of Civil Procedure on July 15, 1924. The complaint was filed October 14, 1924. Section 1190 of the Code of- Civil Procedure declares: “No lien provided for in this chapter binds any property for a longer period than ninety days after the same has been filed, unless proceedings be commenced in a proper court within that time to enforce the same. ...” The ninety days allowed by the provisions of the last-quoted section expired on October 13th. The preceding day was Sunday, which was also “Columbus Day” by enactment of both section 7 of the Civil Code, and section 10 of the Code of Civil Procedure. These sections last cited provide that: “If the . . . twelfth day of October . . . falls upon a Sunday, the Monday following is a holiday.” Hence Monday, October 13, 1924, became a holiday. Both section 10 of the Civil Code and section 12 of the Code of Civil Procedure declare: ‘ ‘ The time within which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is also excluded.” The general rule is that where the last day on which to commence an action falls upon a holiday, the suit may be filed on the following day. (23 Cal. Jur. 973.) Section 1190 of the Code of Civil Procedure,

supra,

in effect, is a statute of limitations prescribing the period of time within which an action to foreclose a mechanic’s lien may be brought. In

Hughes Brothers

Hoover,

3 Cal. App. 145, 150 [84 Pac. 681], it is said: “Giving to section 1190 the only force which it can possibly have is to interpret it as a statute of limitations which provides the time within which an action may be brought for the enforcement of a right.” Evidently, by the terms of section 1190,

Mox, Inc. v. Leventhal

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THOMPSON (R. L.), J.,

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