Chuch v.GarRison

Sharpstein, J. —The plaintiff alleges that the defendants, Garrison and Falla, are indebted to him in the sum of $138.25 for work and labor performed for them, at their request, on their certain thrashing machine, while engaged in thrashing grain in Fresno County, between June 1 and August 14, 1886. Then follows a description of the machine, its appurtenances and value. He alleges that he quit work on said fourteenth day of August, and that ten days have not expired since he ceased so working. He alleges that he has a lien on the machine and its appurtenances for the amount due him for said work, that there is danger of said machine and appurtenances being removed from said county, and prays for a judgment against the said defendant for said sum of $138.25 so due for said work and labor; that E. H. Tucker of Fresno County be appointed by this court to receive and safely keep the said thrashing machine and all of the said appurtenances, and everything thereto appertaining, whether the same has been properly described herein or not, and that the same and every part thereof be sold according to law, and the proceeds thereof be applied to the payment of plaintiff’s judgment, and all costs of suit.

The summons was served on Garrison, one of the defendants, but the record does not show that it was served on Falla, or that either of the defendants ever appeared in the action. The default of defendant Garrison was [201]entered on the fifth day of October, 1886. On the eleventh day of October, 1886, Hawley Brothers Hardware Company (a corporation), by leave of the court, filed a complaint in intervention, in which, among other things, it is alleged that at the time of the commencement of the action the intervenor was, and for more than six months prior thereto had been, the owner of the property mentioned in the plaintiff’s complaint; that the defendants were not agents or employees of intervenor, nor had they or either of them any power or authority to bind intervenor by any contract or to create any lien upon said property; that plaintiff performed no work or labor for intervenor “in, with, about, or upon” said property.

To the complaint in intervention the plaintiff interposed a general demurrer, which was sustained by the court, and as the intervenor declined to amend, judgment was awarded the plaintiff for the relief prayed in his complaint. From that júdgment intervenor appeals. Appellant’s counsel say “that the order sustaining the demurrer must have been made upon the ground that the title to the property could not have been involved in the action. That is to say, the mere fact that work and labor had been performed 'in, with, about, or upon’ the property gave to the persons who had performed such work or labor alien upon the property, and all of it, no matter who was the owner of the whole, or of any part thereof.”