Meyer v. City Street Improvement Co.

SHAW, J.

The action herein was in the ordinary form of a suit to quiet title. An answer and cross-complaint were filed by the appellant in which it set up that it had a lien on plaintiff’s lot by virtue of a contract for the improvement of the street in- front thereof, entered into with plaintiff’s grantor who owned the lot at the time of the contract. The trial court held that the appellant had no lien and gave judgment quieting respondent’s title, from which judgment, and from an order refusing a new trial, the present appeals are taken.

The improvement referred to consisted of paving and curbing the street in front of the lot. It was completed on August 13, 1909, under a contract with Frederick P. Zwicker, made on June 17, 1908. At that time the lot belonged in equal shares to Frederick P. Zwicker and his wife, Helene M. F. Zwicker. On September 8, 1909, Frederick conveyed his interest to his wife, and on December 22, 1909, she conveyed the entire lot to the plaintiff. On January 5, 1910, the defendant filed in the recorder’s office a claim of lien on said lot for the contract price of said improvement, which claim was in the form prescribed for claims of liens by section 1187 of the Code of Civil Procedure. The cross-complaint to foreclose the alleged lien for this work was filed on July 27,

[647]

1910. The owners of the lot did not file any notice of the completion of the improvement as provided by section 1187, and no term of credit was given for payment of the amount due for said improvement.

It will be noted that, although the work was completed on August 13, 1909, the claim of lien was not filed until January 5, 1910, and the cross-complaint to foreclose said lien was not filed until July 27, 1910. The court below held that there was no lien for two reasons: 1. Because the defendant did not file the claim of lien within the time prescribed by section 1187 aforesaid: and 2. Because an action to foreclose was not begun within the time limited by section 1190 of the Code of Civil Procedure, as it read prior to the amendment of 1911 thereto. The defendant contends that under the provisions of the code prior to said amendment of 1911, it was not necessary to file a claim of lien for improvements of a street in front of a lot, made at the request of the owner; also that, if such lien must be filed, the owner who does not file notice of completion under section 1187 is forever estopped to show that the lien was not filed in time; also that section 1190 does not apply to liens for work done under the provisions of section 1191.