Neihaus v. Morgan

VANCLIEF, C. The appellant, Mattie Morgan, wife of defendant Benjamin F. Morgan, being the owner of a lot in the town of Berkeley, County of Alameda, having a frontage of one hundred feet on Channing Way, and extending therefrom three hundred and four and one-half feet, entered into a written contract with defendants Higgins, Davidson & Co., by the terms of which the latter agreed to build two dwelling-houses on said lot, and to furnish all the materials therefor, and the former agreed to pay for the building of said houses $6,000, by certain installments, the last of which installments was to be paid when both houses should be completed. A memorandum of the contract was filed with the recorder of Alameda county before the commencement of the work, but did not state nor show that twenty-five per cent, or any part of the contract price for the building of said houses, or either of them, was made payable at least thirty-five days after the final completion of the work on said houses, or on either of them, or at any time after such completion, but did show that the final payment was to be made when and as soon as both houses should be completed, and all bills paid and liens waived. This action was brought to enforce a lien on said houses and lot for the reasonable value of materials alleged to have been furnished by plaintiffs at the request of Higgins, Davidson & Co. and appellant, to be used, and which were used, in the construction of said houses, which reasonable value is alleged and found to have been $365.40, and also to enforce two other similar liens for materials furnished—one in favor of Oscar Mayer for $100, and the other in favor of Henry Andrew for $306.60—the demands secured by which had been assigned to the plaintiffs. The trial court found in favor of plaintiffs on their claim of $365.40 for materials furnished by themselves, but in favor of the appellant on the two demands which had been assigned to plaintiffs, on the ground that the claims of lien for the assigned demands had not been filed in the recorder’s office within thirty days after the completion of the houses. A final decree in accordance with these findings was entered, from which, and from [393]an order denying a new trial, the defendant Mattie Morgan appeals.

1. Immediately after trial the cause was submitted to the trial court on briefs thereafter to be filed. Thereafter, on May 20, 1893, that court, in the absence of plaintiffs’ attorneys, orally announced its conclusions of law, which the clerk entered in the minutes as follows: “It is ordered that judgment be, and the same is hereby, entered for plaintiffs, foreclosing lien of plaintiffs filed by them for $365.10 and costs, and $50 for attorneys’ fees; and it is further ordered, adjudged, and decreed that the prayer of plaintiffs for judgment on the assigned claims of Messrs. Andrew and Mayer be, and the same is hereby, denied.” No order or request was made that the attorneys for either party draw findings, and no written findings were made or filed, and no formal judgment entered, within six months after the entry of said minute order of May 20, 1893. After the expiration of six months from the entry of said minute order, Mr. Ben Morgan, as attorney for the defendant Mattie Morgan, moved the court to dismiss the action “on the ground that said plaintiff has neglected to demand and have judgment éntered for more than six months from the date of the decision, he being during all of said time entitled thereto.” The court denied this motion, and the attorney for defendant excepted. Thereafter written findings of fact and conclusions of law were filed, in accordance with which a formal decree was then entered enforcing the lien for the sum of $365.40, without interest, and for costs. Counsel for appellant contends that the denial of the motion to dismiss the action was error for which the judgment should be reversed, and, as authority for this, relies upon the sixth division of section 581 of the Code of Civil Procedure. It has been held by this court that the sixth division of section 581 is not mandatory, and that the exercise of the discretionary power of the court in granting or denying a motion to dismiss an action for the cause therein mentioned will not be disturbed, except for an apparent abuse of such power: Rosenthal v. McMann, 93 Cal. 505, 29 Pac. 121; In re McDevitt, 95 Cal. 17, 30 Pac. 101; Marshall v. Taylor, 97 Cal. 422, 32 Pac. 515. The only showing of negligence on the part of plaintiffs’ attorneys, in addition to the facts above stated, is the affidavit of defendant’s attorney “that on or about the twenty-fifth