Palmer v. Lavigne

Searls, C.

This is an action to foreclose a mechanic’s lien upon a dwelling-house and the land adjacent thereto, taken under the Code of Civil Procedur'e, to secure the sum of sixty dollars, due the plaintiffs as copartners and as original contractors for moving the

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house upon which the lien is claimed from San Diego to the ranch described in the complaint.

Plaintiffs had judgment of foreclosure, from which judgment and from an order denying a motion for a new trial defendants appeal.

The defendants are husband and wife, and the real estate upon which the lien was foreclosed is the homestead of the defendants under the laws of the state of California.

Defendants filed separate demurrers to the amended complaint differing in some respects, but each averring that the complaint does not state facts sufficient to constitute a cause of action.

The first point made by appellants is, that, under section 1183 of the Code of Civil Procedure, plaintiffs were not entitled to a lien for moving a building. Their contention is that the section specified only gives such lien for labor performed or materials furnished in the

construction, alteration, or repair

either in whole or in part of a building, and that labor performed in removing a building from one point to another is not within the scope or intent of the statute.

So much of section 1183 as is essential to the question is as follows:

. “All persons and laborers of every class performing labor upon or furnishing materials to be used in the construction, alteration, addition to or repair, either in whole or in part, of any building .... shall have a lien upon the property upon which they have bestowed labor or furnished materials.”

We regard the construction of appellant as being erroneous. “All persons and laborers of every class performing labor upon,” etc. Manifestly the preposition

upon

refers to and has for its objective the noun “building,” and is to be read as though the word “ building” with its qualifying word