San Joaquin Lumber Co. v. Welton

Vanclief, C. The action is to enforce an alleged lien on certain buildings for the value of materials, one hundred and eighty-six dollars and seventy-four cents, furnished by plaintiff to be used, and which were used, in the construction of said buildings.

The plaintiff had judgment by default, all the defendants having failed to appear. The defendants, H. J. and M. C. Sadler, have appealed from the judgment on the judgment-roll.

[3]A reversal of the judgment is asked by appellant on the ground that no cause of action is stated in the complaint. The alleged defect in the complaint is that it does not show that plaintiff’s claim of lien was filed for record within the time prescribed by section 1187 of the Code of Civil Procedure as amended March 15, 1887, which requires a furnisher of materials to file his claim of lien within thirty days after completion of the building, etc.; and that “cessation from labor for thirty days upon any unfinished contract or upon any unfinished building .... shall be deemed equivalent to a completion thereof.”

It is alleged in the complaint, which was filed June 22, 1894: “ That said buildings are in an unfinished condition; that work ceased thereon on or about the first day of April, 1894, and has not been resumed.” It is also alleged that plaintiff’s claim of lien was filed and recorded on May 8, 1894. If the work ceased on April 1st, or at any time before April 7th, the buildings were properly deemed completed before May 8th, when the claim of lien was filed for record, and the filing was within thirty days after such completion. It is claimed by appellant, however, that a cessation of work on April 9th would be within the meaning of the phrase “ on or about the first day of April.” But, even if this be conceded, I think it only follows that the allegation as to time of the cessation of work was uncertain, and subject only to a special demurrer on that ground; and that, in the absence of such demurrer, the plaintiff was entitled to prove that the work ceased on the first day of April, 1894. It appears that evidence was introduced and considered, and that the court expressly found: “That the work of constructing and erecting said dwelling-house and barn ceased on the first day of April, 1894, and said buildings were then left in an unfinished condition, and still remain in an unfinished condition.” This finding supplied the only want of certainty in the complaint, since it was alleged in the complaint, and confessed by the default, that after the cessation the work had not