Santa Monica Lumber & Mill Co. v. Hege

BELCHER, C. This is an action to foreclose a lien for materials furnished for and used in the construction, alteration and repair of certain buildings on a lot of land in the town of Santa Monica, county of Los Angeles. Defendant Hege was the owner of the lot, and defendant Naumann was the lessee thereof. The materials were furnished by plaintiff upon the order of Naumann, and were of the alleged value of $244.59. Naumann suffered his default to be entered. Hege demurred to the complaint, and, his demurrer being overruled, answered. The case was tried, and the court found, among other things, that all the allegations of the complaint were true, except that $75 instead of $100, as stated therein, would be a reasonable attorney’s fee, and, as conclusions of law, that there was “due to the plaintiff from the defendants the sum of $244.59, and the further sum of $1.45, expenses of recording said lien, and the further sum of $75, hereby allowed as attorney’s fees; that defendant Dr. [630]Wm. Naumann is personally liable therefor, and that the amounts aforesaid are, and each of them is, a valid lien against the real property described in the complaint, and of every part and parcel thereof, and plaintiff is entitled to a decree foreclosing its said lien against said real property.” Judgment and decree were accordingly so entered, from which and from an order denying a new trial defendant Hege appeals. Several grounds for reversal are urged by appellant, but only the following need be noticed:

1. It is insisted that the claim of lien was prematurely filed, and hence that it conferred no rights. The statute provides that any person, save the original contractor, claiming the benefit of the chapter in regard to liens of mechanics and others upon .real property, must “within thirty days after the completion of any building, improvement or structure, or after the completion of the alteration, addition to or repair thereof, ’ ’ file for record his claim of lien, etc., and that "any trivial imperfection in the said work, or in the construction of any building, improvement or structure, or of the alteration, addition to or repair thereof, shall not be deemed such a lack of completion as to prevent the filing of any lien,” and also that “cessation from labor for thirty days” shall be deemed equivalent to a completion: Code Civ. Proc., sec. 1187. It has been held that the filing of a claim of lien before the time authorized by the statute is premature, and no right to enforce the lien is thereby acquired: Roylance v. Hotel Co., 74 Cal. 273, 20 Pac. 573; Schwartz v. Knight, 74 Cal. 432, 16 Pac. 235; Willamette Steam Mills Lumbering etc. Co. v. Los Angeles College Co., 94 Cal. 229, 29 Pac. 629. It was alleged in the complaint and the court found that “the said buildings and repairs were completed on the twenty-third day of July, 1894,” and that on the eleventh day of August, 1894, the plaintiff duly filed its claim of lien, etc. We find in the record no evidence tending to show that the buildings and improvements were fully completed on the day named, or at what particular time they were completed. Plaintiff’s witness Emerson testified that he worked as a carpenter on the buildings, and that he finished work in the latter part of June, “and the buildings were completed shortly after.” And on cross-examination he testified that what he knew of matters that occurred after he quit work was what he saw on passing by the property, which was