C. Ganahl Lumber Co. v. Thompson

WASTE, C. J.

This action was instituted to foreclose a materialman’s lien and to recover on a statutory bond given by the contractors. The appeal is taken on the judgment-roll alone. It appears from the findings that the defendants Longshore, as owners, entered into a contract with the defendants Thompson and Stowell, as contractors, for the erection of a building on the owners’ lot in the city of Redondo

[356]

Beach. Defendant McWhinnie, as surety, purported to execute a bond to insure the performance of the contract as provided for in section 1183 of the Code of Civil Procedure. The building was completed September 21, 1923, at which time the owners moved in, took possession, and occupied the premises. The occupancy was accompanied by a cessation of labor. Notice of completion was not filed within ten days after completion, as required by section 1187 of the Code of Civil Procedure, but was filed by the owners on November 30th, more than two months thereafter. This notice specified November 15th as the date of completion. On December 27th the appellant filed its claim of lien for materials furnished and used in the construction of the building and subsequently brought this action to foreclose.

The trial court entered judgment for plaintiff against the contractors for the amount due for the materials furnished, together with interest and costs, but denied it the right to foreclose its lien. It also denied plaintiff judgment against the surety on the contractors’ bond. From the adverse portions of the judgment plaintiff has appealed.

■The trial court found, and the appellant concedes, that the building was completed and occupied by the owners on September 21, 1923. As the owners failed to file their notice of completion within ten days thereafter it was incumbent upon all persons to file their claims of lien within ninety days after actual completion of the building. (Code Civ. Proc., see. 1187;

Schwartz & Gottlieb

v.

Marcuse,

175 Cal. 401, 415 [165 Pac. 1015];