Sparks v. Butte County Gravel Mining Co.

Sharpstein, J.: The plaintiffs brought this action for the foreclosure of mechanics’ liens upon the property of the defendant corporation, and the appellant was made a defendant, on the ground that he claimed some interest in or lien upon the property which the plaintiffs were seeking to foreclose their liens upon. Appellant, in his answer, admitted all the allegations of the complaint, except that his lien was subsequent and subject to the liens of the plaintiffs. That he denied. The respondents contend that the appellant is a “ material-man,” and not “ an original contractor,” and therefore should have filed his lien within thirty days of the completion of the building.

The defendant alleges that he entered into a contract with the corporation defendant, “ under and by virtue of which lie [391]furnished to said defendant certain materials to he used, and which were actually used, in the construction of a certain building, structure, or mining claim,” upon premises owned by said corporation. He further alleges that he “ has fully performed all the conditions of said contract on his part to be performed, and said contract was completed, and said building, structure, or mining claim was completed, on the 24th day of December, A. D. 1877.

“ That said materials so furnished as aforesaid were worth the sum of $2,716.87, United States gold coin, and by the terms of said contract said defendant, the Butte County Gravel Mining Company, agreed to pay this defendant therefor the said sum of $2,716.78, in United States gold coin, within sixty days after the 21st day of December, A. D. 1877.

“ That within sixty days after said contract was completed, to wit, on the nineteenth day of February, A. r>. 1878, this defendant filed with the County Recorder of said Butte County, his claim, duly verified by his oath, containing a statement of his demand, after deducting all just credits and offsets, and all other statements required by the law in such cases to be made, which said claim was on the said 19th day of February, A. D. 1878, duly recorded in the office of the County Recorder of said Butte County.”

These are followed by appropriate allegations, which it is not necessary to quote or refer to. The answer was demurred to by the plaintiffs, and the demurrer sustained, on the ground that the answer did not state facts sufficient “ to constitute a cause of action, or to entitle the said defendant W. T. Garrett to the relief prayed for in this action, or to any relief whatever.” Defendant Garrett failed to amend his answer, and judgment was thereupon entered against him. From that judgment this appeal is taken.