Ascha v. Fitch

California Supreme Court Oct 6, 1896 No. Sac. No. 115Published

Before: Searls

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Holding. The court held that a mechanic's lien notice must substantially comply with statutory requirements, finding one lien invalid for failing to state the employer's name, while two others were valid because they contained substantially equivalent information. Additionally, a plaintiff whose lien is invalid may still be entitled to a personal judgment against the defendant.

Issues

Whether the mechanic's liens filed by the plaintiffs sufficiently complied with the requirements of section 1187 of the Code of Civil Procedure.
Whether the trial court erred in granting a nonsuit against a plaintiff whose lien was invalid but who proved labor performed for the defendant.

Disposition. reversed

Quotations verified verbatim against the opinion

“The lien filed by said George F. Ascha states that C. S. Fitch is the owner and reputed owner, but fails to state by whom he was employed. This was a fatal omission”

“where it appears that the precise words of the statute have not been used by the claimant, but that other and substantially equivalent expressions have been resorted to, it will be deemed a sufficient compliance”

“The lien of C. P. Ascha, as before stated, was without validity, but, upon the evidence disclosed by the record, he was entitled to a personal judgment against the defendant for the amount due him”

Synopsis

Mining Lien Claim—Sufficiency—Statement.—Under Code of Civil Procedure, section 1187, which requires the claimant of a lien for labor performed on a mining claim to file for record his claim, containing a statement, among other things, of “the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed,” a lien claim which fails to state by whom the claimant was employed is fatally defective.

Mining Claim Lien—Sufficiency of Statement.—A claim for lien, after describing the mining claim, stated that F. was the owner of the claim, “the said lien being held and claimed for and on account of work and labor performed by me as a miner for said F. on said mining claim” for a period definitely stated, “under an agreement with said F.,” etc. Held, that such claim stated by whom the claimant was employed, as required by Code of Civil Procedure, section 1187.

Mining Claim Lien.—Such Claim of Lien Contained a Sufficient statement of the “terms, time given, and conditions of the contract,” as required by statute.1

Mining Claim Lien.—Where the Precise Words of the Statute have not been used by the claimant of a lien for labor done 'on a mining claim, but substantially equivalent expressions have been resorted to, it is a sufficient compliance with the statute.

Mining Claim Lien.—In an Action to Enforce a Lien for Labor Done on a mining claim, where it appears that the claim for lien is insufficient because it fails to state by whom the claimant was employed, the claimant is entitled to a personal judgment against defendant for the amount due him, and it is error to grant a motion for nonsuit.

SEARLS, C. This action is brought to enforce three several liens, one in favor of each of the plaintiffs, for labor performed upon the Gold Nugget mining claim, situate in the county of Siskiyou. The three plaintiffs united in the action, as under section 1195 of the Code of Civil Procedure they may properly do. At the trial the liens were severally offered in evidence. To their introduction, and to the introduction of each of them, counsel for defendant objected, “upon the grounds that it is incompetent, irrelevant, immaterial, and, further, that it does not comply with section 1187 of the Code of Civil Procedure, which section provides what these claims of lien shall contain. It is not verified, as provided by law it shall be. It does not contain the name of the person by whom this man was employed. It does not contain a statement of the terms, time given, or conditions of the contract.” The court sustained the objection, to which ruling counsel for plaintiffs duly excepted. Thereupon counsel for plaintiffs rested, and on motion of defendant’s counsel a nonsuit was granted. These several rulings were relied upon by the plaintiffs in a motion for a new trial, and from an order denying such motion they appeal.

[483]There was proof of the performance by plaintiffs of the labor for defendant upon the mining claims, and of the filing of the liens in due time, and the first question involved relates to the sufficiency of the several liens and of the affidavits thereto. We are of opinion that the ruling of the court in excluding the lien of George F. Ascha, one of the plaintiffs, was correct. Under section 1187 of the Code of Civil Procedure, the lien claimant is required to file for record his claim, containing a statement, among other things, of “the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed,” etc. The lien filed by said George F. Ascha states that C. S. Fitch is the owner and reputed owner, but fails to state by whom he was employed. This was a fatal omission: Wood v. Wrede, 46 Cal. 637. Different considerations apply to the other two liens. They are substantially alike, and we set out one in full, with the affidavit attached thereto, as a type of the other. It is as follows:

“Know all men by these presents, that I, L. F. McCoy of Sawyer’s Bar, Siskiyou county, state of California, do hereby give notice of my intention to hold and claim a lien, by virtue of the statute in such case made and provided, upon that certain real estate in said Siskiyou county, in Liberty mining district, and known as the ‘Gold Nugget Mining Claim’; that C. S. Fitch is the owner and reputed owner of said mining claim, the said lien being held and claimed for and on account of work and labor performed by me as a miner for said C. S. Fitch upon said mining claim for the period of thirty-six days from the 10th day of April, 1894, up to and including the 30th day of May, 1894, under an agreement with said C. S. Fitch, for an agreed per diem of $2.50, amounting in the aggregate to the sum of $90; that by the terms of said agreement I was to receive my pay at the end of each and every week; that I have received for said work and labor the sum of $16, and no more, leaving a balance still due, owing, and unpaid to me of the sum of $74; that thirty days have not elapsed since the performance of said work and labor.

Ascha v. Fitch

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