Boscow v. Patton

SMITH, C.

The suit was brought to foreclose a lien for materials furnished by the plaintiff in the construction of a

[91]

building on the land of defendant Reynolds. Judgment was entered for defendant, from which and from an order denying a hew trial the plaintiff appeals.

The work was abandoned by the contractors in an unfinished condition; and from and after November 5, 1897, there was, it is found, a complete cessation from labor thereon for a period of over thirty days. Notice of the cessation of labor on that day—as required by section 1187 of the Code of Civil Procedure—was filed and recorded December 7, 1897. Plaintiff’s claim of lien was filed January 7, 1898, which was one day more than “thirty days after the filing of [the] notice.” The only point urged in the appellant’s brief is, that the last work on the building was done on the fourth day of November, 1897, and not on the fifth, as found, and that the finding of the latter date is not justified by the evidence. The testimony of Reynolds, as cited by respondent, seems to establish the contrary. But the point, we think, is immaterial. The error of date, if' any, was not of a kind to prejudice the plaintiff or other claimants of liens, and, in accordance with the general rule, must be held to be immaterial. It is true, as urged by appellant, that the law requires the notice to be verified; but this is equally true of the analogous case of pleadings, where the rule is that the date alleged is immaterial. The eases of

Santa Monica etc. Co.

v.

Hege,

119 Cal. 377, and

Wilson

v.

Nugent,

125 Cal. 280, cited by appellant’s counsel, have no application to this case. They apply only to the claim of lien, which, as part of a proceeding to subject the property of another to a statutory lien, must, it was held, follow the requirements of the statute. In the eases cited the questions involved related to material variances, and not, as here, to mere errors of date.