Brennan v. Swasey (1860) · DecisionDepot

Brennan v. Swasey

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1860Published

Before: Cope

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Holding. The court held that a lien is properly secured by a statement of the demand's nature and amount without itemization, and that pursuing a lien is not waived by a prior attachment action that yielded no recovery.

Issues

Whether a lien claim requires an itemized account to be properly secured under the statute.
Whether the initiation of an attachment action constitutes a waiver of a lien for the same debt.

Disposition. Reversed and remanded

Quotations verified verbatim against the opinion

“Nothing more was required than a statement of the demand, showing its nature and character, and the amount due or owing thereon.”

“The plaintiffs did not waive their lien by bringing an action, and causing an attachment to be issued and levied upon property of the debtor to secure the same demand.”

“The two remedies are cumulative, and both may be pursued at the same time.”

Synopsis

The notice of mechanic’s lien, filed in the Recorder’s office, need not set oat the items of the account; a general statement of the demand, showing its nature. and character, and the amount due or owing thereon, is sufficient.

A party having secured a mechanic’s lien under the statute, does not forfeit or waive it, by causing an attachment to be issued and levied upon property of the debtor to secure the same demand. The two remedies are cumulative, and both may be pursued at the same time.

If the party attempts to pursue them in separate actions, he might be put to his election; but it is no defense to an action to enforce the mechanic’s lien, that in a previous suit for the same debt an attachment was issued and levied upon the property of the debtor, particularly when such suit had been dismissed, and nothing was realized by the attachment.

Cope, J. delivered the opinion of the Court Baldwin, J. concurring.

The decree in this case cannot be maintained. The lien claimed by the plaintiffs was properly secured under the statute. It was unnecessary to set out the items of the account. Nothing more was required than a statement of the demand, showing its nature and character, and the amount due or owing thereon.

The plaintiffs did not waive their lien by bringing an action, and causing an attachment to be issued and levied upon property of the debtor to secure the same demand. The two remedies are cumulative, and both may be pursued at the same time. In case of an attempt to pursue them in separate actions, the party might be put to his election, but it is no defense to an action to enforce the lien that in a previous suit for the same debt an attachment was issued and levied upon the property of the debtor, and particularly where, as in this case, such suit has been dismissed, and nothing realized by the attachment.

Judgment of the Court below reversed, and the cause remanded for a new trial.

Brennan v. Swasey

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