Wheaton v. Superior Court

SCHMIDT, J.,

pro

tem.

Petition for writ of mandate.

On April 24, 1929, one John C. Flick filed in the Superior Court of Los Angeles County his action against one Maude Wheaton, petitioner herein, to foreclose a mechanic’s lien in the sum of $917.20. On April 22, 1930, said petitioner herein moved the respondent court to dismiss the action on the ground that the property against which the lien was attempted to be foreclosed was within the city of Los Angeles and that by reason of the change in jurisdiction of the municipal court, as provided by act of the 1929 legislature (Deering’s Gen. Laws 1929, p. 3527, Stats. 1929, p. 838), the superior court had lost jurisdiction of the action. The motion was denied. Subsequently the case was tried and judgment rendered in favor of the plaintiff, against petitioner, in the sum of $917.20, plus interest and costs, and provided that same be adjudged a lien against the land described in plaintiff’s complaint. Subsequently an order of court was made appointing a commissioner to sell the real property described

[704]

in the judgment; execution issued thereon and the commissioner, pursuant to the execution, sold the property. Subsequently an order was issued to show cause why the judgment should not be vacated and set aside and why the commissioner should not be permanently restrained from selling the premises referred to in the judgment. The motions to vacate and set aside and to restrain the commissioner from selling were denied and the order to show cause dismissed. Petitioner thereupon filed her petition in this court, asking for a writ of mandate compelling the respondent superior court to vacate said judgment and set aside the sale of the property by the commissioner.

Petitioner contends by reason of the change in the jurisdiction of the municipal court by the act of the 1929 legislature that the superior court was deprived of jurisdiction to continue with the action. If this contention is correct then the action should have been dismissed in the superior court and a new action would have to be filed in the municipal court. This would have become a useless act, for by the terms of section 1190 of the Code of Civil Procedure, the lien theretofore filed under section 1183 of the Code of Civil Procedure would have become ineffective, inasmuch as more than ninety days had elapsed from the filing of the lien to the bringing of the new action. Article 20, section 15, of the Constitution of the state of California, provides: “Mechanics, materialmen, artisans and laborers of every class shall have a lien upon the property upon which they have bestowed labor or furnished material, for the value of such labor done and material furnished; and the legislature shall provide, by law, for the speedy and efficient enforcement of such liens.” This makes it mandatory upon the legislature to provide a remedy for the foreclosure of a lien.