Berentz v. Kern King Oil & Development Co.

SMITH, J. This suit was brought to foreclose several liens for work and labor performed in the construction of an oil well on a tract of eighty acres of land described in the complaint. The Belmont Oil Company was and is the owner of the land, of which the other defendant holds a lease, and the latter defendant is also the owner of the drilling apparatus, derrick, etc., now on the land, and used, it is alleged, “in the development and working of the said land and mining claim.” The Belmont Oil Company suffered default. The other defendant filed demurrer and answer, but did not appear at the trial. The judgment is against the Kern King Oil and Development Company and contractors for the sums therein named, and it is further adjudged “that plaintiff is entitled to enforce the liens upon the mining claims and the improvements described in the complaint herein for the said sum found due him, and that said liens are superior and paramount to the interest and claim of all the defendants herein. ’ ’ The appeal was taken within sixty days of the entry of judgment.

The judgment against the Belmont Oil Company must be reversed, for the several reasons that there is no allegation in the complaint that it had any knowledge of the work done on the land, that the judgment goes beyond the prayer of the complaint, and that there was no competent proof of the service of summons.

With regard to the latter point,' there is a return of one Bristol, a constable, that he had served the Belmont Oil Company in the county of San Bernardino, but this was not verified: Code Civ. Proc., sec. 410. It is, indeed, intimated in respondent’s brief that the return of service was amended, but we are not cited to what part of the transcript this amendment is to be found, nor does it appear in the index, por fiave we been able tg find it,

[216]The judgment against the other defendant must also, we think, be reversed. The judgment is for a lien upon the whole of the land described in the complaint; but there is no allegation in the complaint that the whole of the land was necessary for the convenient use and occupation of the well, nor was any evidence introduced with reference thereto, nor is there any finding upon the subject. It is also to be observed that the action of the court in this particular seems to have resulted from the statement of the plaintiff’s attorney that it was not denied in the answer that the whole of said land was required for the convenient use and occupation of the well, by which, as the fact was not alleged in the complaint, the court was doubtless misled.