Germania Building & Loan Ass'n v. Wagner

California Supreme Court Aug 29, 1882 No. No. 8,394Published

Before: Morrison

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Holding. The court held that mechanics' liens are not abrogated by the state Constitution, that they take priority over mortgages recorded after the commencement of the work, and that such liens are not extinguished by the claimant obtaining a personal judgment for the underlying debt.

Issues

Whether the state Constitution abrogated existing mechanics' lien laws.
Whether mechanics' liens are superior to mortgages recorded after the commencement of construction.
Whether a mechanic's lien is extinguished by the claimant obtaining a personal judgment for the debt.

Disposition. affirmed

Quotations verified verbatim against the opinion

“it was not the intention of the new Constitution to repeal or abrogate the then existing law, giving liens to mechanics and others upon real property”

“the taking of a bond with warrant of attorney to confess judgment, and judgment confessed therein, does not extinguish the lien of the mechanic or material-man”

Synopsis

Mechanics’ Liens—Constitutional Law.—It was not the intention of the new Constitution to repeal or abrogate the then existing law giving liens to mechanics upon real property found in Sections 1183 to 1199, Code of Civil Procedure, and such law was preserved in full force and effect by Section 1, Article xxii., of the Constitution.

Id.—Notice op Lien.—The notices of lien in question in this case were filed in time, and sufficiently set forth the contracts upon which they were founded, and the parties between whom they were made, as well as the character and quality of the materials furnished.

Id.—Foreclosure op Mortgage—Answer—Cross-complaint—Appeal,— Upon an appeal by the plaintiffs in a foreclosure suit—in which the mortgagors made default—from a judgment foreclosing the mortgages sued upon, and also the mechanics’ liens set up in the answers and cross-complaints of certain defendants, and adjudging the latter to be paramount to the plaintiff’s mortgages, it was objected that the cross-complaints were not served upon the mortgagors, and that therefore the Court had no jurisdiction of their persons.

Held: The appellant has not been injured by the omission, and has no right to urge the objection. Besides, there was no necessity for a cross-complaint in the case. It was charged in the complaint that the appellants had or claimed some interest in the mortgaged premises, and it was sufficient for them to set up that interest by way of answer.

Id.—-Mortgage—Priority of Lien,—The defendants’ liens, being for materials which they commenced to furnish before the execution of either of the mortgages sued upon, were properly preferred to and given priority over them.

Id.—Judgment—Merger.—A mechanic’s lien is not merged or destroyed by a judgment against the party personally liable.

Morrison, C. J.: Plaintiff brought this suit to foreclose two mortgages on certain premises in the city of Sacramento, and made defendants parties, under'a general allegation in the complaint that they have or claim to have some interest in the property, as the holders of mechanics’ liens or otherwise, which interest or claim is subsequent and subordinate to the lien of the plaintiff. It appears from the bill of exceptions that the mortgage first described in the complaint was made on the first day of April, 1881, and the second mortgage was executed on the nineteenth day of May, 1881.

The allegation in the answer and cross-complaint of the defendant, the Sacramento Lumber Company, is, that the Company commenced to furnish materials to be used, and which were used, in the erection of a building on the premises in question on the.eighteenth day of February, 1881, and continued to furnish such materials down to the twentieth day of June, 1881, and this allegation is found by the Court to be true. The allegation in the answer of the defendant Martin is, that he commenced to furnish materials for the building above referred to on the seventh day of March, 1881, and this allegation is found by the Court to be true.

These two liens were held to be prior and paramount to the liens created by the mortgages to the plaintiff; and the correctness of the judgment of the Court below is attacked on this appeal.

[353]When the defendant, the Sacramento Lumber Company, offered in evidence its notice of claim of lien, the following objections were made thereto:

“ 1. Because there is no law in the State of California to provide for the enforcement of mechanics’ liens that have accrued since the adoption of the present Constitution of this State; and because it is irrelevant and immaterial.

“2. Because it was not filed for record in the County Recorder’s office within thirty days after the completion of the contract between the said defendant, Sacramento Lumber Company, and the defendants, John and Helena Wagner; and that it does not set forth the contract between the Sacramento Lumber Company and defendants, John and Helena Wagner, as averred in the Sacramento Lumber Company’s cross-complaint. It does not state by whom the contract for the alleged indebtedness was made, and does not state the character of the materials, or the quantity furnished, or to whom furnished.” The Court overruled the objections, and the plaintiff then and there excepted; and the same objection was interposed to the introduction in evidence of the notice or claim of the lien of the defendant Martin.

Germania Building & Loan Ass'n v. Wagner

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