Holden v. Mensinger

HENSHAW, J.

This is an appeal from a judgment given in favor of plaintiffs in their action as contractors to foreclose their mechanic’s lien upon the property of appellant Mensinger. Plaintiffs sued in their individual capacity and as copartners doing business under the firm name and style of the Thomas Holden Decorating Company, a copartnership. Their lien claim was filed in the name and on behalf of the Thomas Holden Decorating Company, a copartnership. The material which they furnished and the labor which they performed were in and about the decoration of a theater erected on the appellant’s land.

Appellant advances against the judgment certain untenable and highly technical propositions. Thus, he declares that the transcript does not show that the action was commenced within ninety days after the filing of the lien claim. This manifestly arises from the fact that the original complaint was superseded by an amended complaint, which appears in the transcript. He raised no plea of the statute of limitations and does not even now contend that the action was not commenced in time, as manifestly it was, or he would have

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been at pains to show the contrary. Suffice it to say that in the absence of a showing of the fact, the presumption will favor the judgment. He next contends that he interposed a general demurrer and that “the transcript fails to show that any order was made by the court sustaining or overruling this demurrer.” Again, it may be said that the objection is wholly frivolous in view of the fact that in more than one place in the record it is shown that appellant’s counsel knew and recognized the fact that the demurrer had been overruled. Thus:

“Mr. Boyce: Well, may it please the court, we had a demurrer interposed upon the ground the complaint did not state facts sufficient to constitute a cause of action and the demurrer was overruled.”

Still further, it is argued that there is no testimony in the record showing that any materials were furnished or labor performed upon the property or any part of it against which the lien is sought. This contention is based upon the fact that in their evidence many of the witnesses colloquially spoke of the building as the “Modesto Theater.” But the property was described as being “on Tenth Street and located on lots 9, 10, and 11, block 56, and is known as the Mensinger Block.” It is further abundantly established that Mensinger owned the land, and not only knew of the erection of the theater but knew personally the work that was being done by these plaintiffs.