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 and 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 parties defendant, 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 and 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 he alleged that he conveyed all of his right, title, and interest in the said premises to the Realty and Rebuilding Company. On June 19, 1911, the Realty and Rebuilding Company was served with summons in the city and

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county of San Francisco under the name of “First Doe,” one of the fictitious defendants. On July 10,1911, the cause came on for trial, Rudolph Spreckels and certain other defendants appearing, but the Realty and Rebuilding Company not appearing, the time for its appearance having expired, and its default having been entered, and the cause was tried upon all of the issues raised by the answers of the several defendants who had appeared, including Rudolph Spreckels. At the conclusion of the trial the court filed its findings wherein it found that the plaintiff was entitled to the foreclosure of its lien against all of the defendants, but also specifically found that the defendant Rudolph Spreckels had conveyed all of his interest in the property to the Realty and Rebuilding Company on April 23, 1908. In its judgment following said findings the court rendered no judgment against Rudolph Spreckels except in so far as he might be affected by the general statement in said judgment that the claims and interests of all of the defendants in said property were subject and subordinate to the plaintiff’s lien. No judgment for costs was awarded against said Spreckels; neither did the court award him costs against the plaintiff. From this judgment the defendant Spreckels prosecutes this appeal.