Roylance v. San Luis Hotel Co.

California Supreme Court Dec 2, 1887 No. No. 12000Published

Before: Foote

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Holding. The court held that a mechanic's lien claim filed before the completion of the building is premature and unenforceable. It further held that the notice of appeal was sufficient to confer jurisdiction despite the omission of certain parties, as it clearly identified the specific portion of the judgment being challenged.

Issues

Whether the notice of appeal was sufficient to confer jurisdiction despite failing to include all parties to the original judgment.
Whether a mechanic's lien filed prior to the completion of the building is valid and enforceable under the statute.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Therefore the appeal as taken should be entertained, notwithstanding that the counsel for Armstrong Brothers were not served with notice of the appeal.”

“it appears that the plaintiffs prematurely filed their claim of lien, and according to their allegations could not enforce it.”

“Wherefore the judgment appealed from should be affirmed.”

Synopsis

Appeal from a judgment of the Superior Court of San Luis Obispo County.

The action was brought by the plaintiffs, as partners, against the defendants, the San Luis Hotel Company and Armstrong Brothers, to recover a certain sum of ihoney from the latter for materials furnished them for use, and which were used, in the construction of a hotel belonging to the hotel company, and to have the amount due declared to be a lien on the hotel premises, and to have the same sold to satisfy the lien. In the court below, judgment was rendered as follows: “ This cause, coming on regularly to be tried, .... the court, having heard and considered the allegations and evidence of the respective parties, did .... make and file its findings ■of fact and conclusions of law herein, and ordered judg.ment to be entered herein, that the plaintiffs take nothing herein against the defendant San Luis Hotel Company, and that the plaintiffs’ complaint, in so far as it ¡seeks to foreclose a lien, be dismissed; and that the said •hotel company defendant have judgment against the ¡plaintiffs for costs; and that the plaintiffs do have and ■¡recover from John D. Armstrong and William Arm¡strong, partners as Armstrong Brothers, the sum of,” ■etc. “ Wherefore, .... it is ordered, adjudged, and ■decreed that the plaintiffs take nothing against the ■defendant the San Luis Hotel Company, and that the ¡plaintiffs’ complaint herein, in so far as it seeks to foreclose a lien, be, and the same is hereby, dismissed out of this court; and it is further ordered and adjudged that the defendant the San Luis Hotel Company do have and recover of and from the plaintiff its costs and disbursements herein, now taxed at $20.25.” Within due time after judgment, the plaintiffs served on the attorneys of the defendant the San Luis Hotel Company and filed the following notice of appeal: “ You will please take notice that the plaintiffs, Joseph Roy-lance, Robert Dalziel, and Frederick Delger, partners under the firm name and style of San Francisco Brass Works, hereby appeal .... from the judgment .... filed and entered in the said superior court on the twenty-first day of January, 1886, .... dismissing said action as to the defendant San Luis Hotel Company, and for recovery by said last-named defendant from the plaintiffs of twenty dollars and twenty-five cents ($20.25) costs of said action. The plaintiffs appeal from the whole of said judgment, and from every part thereof.” The notice of appeal was not served on the attorneys of Armstrong Brothers. The further facts are stated in the opinion.

Foote, C. — As it appears to us, the notice of appeal-in this action was intended to embrace only that part of the judgment of the court below which affected the plaintiffs in adjudging that “ they take nothing against the defendant the San Luis Hotel Company, and that their complaint, in so far as it seeks to foreclose a lien, be and the same is hereby dismissed out of this court,” and “ that the defendant the San Luis Hotel Company do have and recover from the plaintiff its costs and disbursements now taxed at $20.25.” It was not intended to include in the notice any appeal from that portion of the judgment where the plaintiff recovered a personal judgment against Armstrong Brothers for a sum of money.

Taking all the terms of the notice of appeál together, it seems to us that the words “ said judgment,” where they occur in the last clause of the notice, refer, not to the whole judgment as rendered by the court, but to that part of it which is set out in the language of the notice preceding the last clause thereof, which language, fairly interpreted, includes only that part of the judgment which affects the hotel company and the plaintiff, but does not include that portion which affects the rights of Armstrong Brothers.

Therefore the appeal as taken should be entertained, notwithstanding that the counsel for Armstrong Brothers were not served with notice of the appeal.

But the complaint does not show that the plaintiffs are entitled to enforce any mechanic’s lien upon the building of the hotel company. For, as alleged in the complaint, the claim of lien was filed on the 13th of October, 1884, and the building was not completed until after that date. Hence, from that pleading itself, it appears that the plaintiffs prematurely filed their claim of lien, and according to their allegations could not enforce it.

In Perry v. Brainard, 8 Pac. Rep. 430, it was said: [277]“ The court below found that the lien which was sought to be enforced by the action was filed prior to the completion of the building, and was therefore prematurely filed. The statute reads: ‘ Every original contractor, within sixty days after the completion of his contract, and every person save the original contractor, claiming the benefit of this chapter, must, within thirty days after the completion of any building, improvement, or structure, or after the completion of the alteration or repair thereof, or the performance of any labor in a mining claim, file for record/ etc. (Code Civ. Proc., sec. 1187.) It will be seen that the time prescribed by the statute for the filing of the plaintiff’s claim was ‘within thirty days after the completion of the building.’ Under a similar statute, the supreme court of Kansas lately held in two cases,—Davis v. Bullard, 32 Kan. 234, and Seaton v. Chamberlain, 32 Kan. 239,—that a claim so filed was premature, and a lien based thereon could not be enforced. The reasoning of that court commends itself to our judgment, and is much the same as was used here in Dingley v. Greene, 54 Cal. 335: ‘No privity of contract/ said the court, in Davis v. Bullard, ‘ exists between the owner of the building and the subcontractor; but the subcontractor’s rights are based simply and solely upon his contract made with the contractor. The contractor, and not the owner of the building, is the subcontractor’s debtor, and the subcontractor has no right to claim that the building has been completed until the contractor under whom he claims has such right. Under the contract between the owner and the contractor, the owner agrees to pay the contractor a certain sum for constructing the building, and this sum is a fund which may be held under the statutes for the payment, so far as it will go, of all the claims of all the various subcontractors, for work and materials furnished by them to the contractor, who is the principal and head of all; and all the parties entitled to payment or contribution out of this

Roylance v. San Luis Hotel Co.

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