Greely v. Noble

HAVEN, J.

Plaintiff appeals upon the judgment-roll alone in an action to foreclose an original contractor’s lien for street improvements, claimed by plaintiff under the provisions of section 1191 of the Code of Civil Procedure. The plaintiff alleged, and the court found, that the work upon which the lien was based was fully completed and performed on June 4, 1917; and that plaintiff’s claim of lien was filed in the office of the county recorder on August 6, 1917, more than sixty days after the completion of the work. From these facts the court reached the conclusion of lawr that the claim of lien was not filed within the time required by section 1187 of the Code of Civil Procedure and was, therefore, invalid. There is neither allegation in the complaint nor finding as to the filing,

[629]

or want of filing, by the owner of the notice of completion provided for in said section.

The appeal presents the single question as to whether or not it is incumbent upon the plaintiff, in order to obtain the benefit of the ninety-day period for filing liens specified in the closing sentence of section 1187 of the Code of Civil Procedure, to allege and prove that the owner did not file the notice of completion therein provided for. Counsel for appellant state that this question has never been considered by the appellate courts of this state, and we have found no case in which the exact question is involved. In

Meyer

v.

City Street Improvement Co.,

164 Cal. 645, [130 Pac. 215], it was held that a claim of lien for street work under section 1191 of the Code of Civil Procedure was in time if filed within ninety days after the completion of the work. That decision is based upon an interpretation of the mechanic’s lien law as it existed prior to the amendments of 1911, and expressly states that it does not determine the effect of the revised act. The present provisions of section 1187 apply to liens claimed under any section of the chapter on mechanics’ liens.

(Boscus

v.

Waldmann,