Baird v. Havas

KNIGHT, J.— This was an action to foreclose a material-man’s lien. The trial court held that the claim of lien was not filed within the statutory period and gave judgment for the defendants. Plaintiffs took two appeals, one from the judgment, and the other from an order denying their motion to set aside and vacate the judgment and to enter another and different judgment upon the grounds that the conclusions of law were incorrect and erroneous and not consistent with or supported by the findings of fact. (Code Civ. Proc., §663 ; Funk v. Campbell, 15 Cal.2d 250 [100 P.2d 762].) The appeals were taken to the Supreme Court, and the former is now pending therein, no transcript as yet having been filed. The latter appeal was transferred to this court for hearing and determination, and is presented on a clerk’s transcript. The issue involved is whether the findings of fact sustain the legal conclusion that the claim of lien was not filed within the time fixed therefor by section 1187 of the Code of Civil Procedure. The points urged in support of the appeal are without merit.

The pertinent provisions of the first paragraph of section 1187 provide that every person save the original contractor, at any time after he has ceased to furnish materials for any work of improvement, and until thirty days after the completion of such work of improvement, as a whole, may file for record with the county recorder a claim of lien; and that in all cases, any of the following shall be deemed equivalent to a completion for all the purposes of the statute: “the occupation or use of a building, improvement or structure by the owner, or his representative, accompanied by cessation from [525]labor thereon; or the acceptance by the owner, or said agent, of said building, improvement or structure, or cessation from labor for thirty days upon any contract or upon any building, improvement or structure, or the alteration, addition to, or repair thereof; the filing of the notice hereinafter provided for.” The second paragraph then goes on to provide that the owner shall within ten days after completion of any contract or work, or within ten days after there has been a cessation from labor thereon for a period of thirty days, file a notice with the county recorder setting forth the date when the same was completed or on which cessation from labor occurred; and that in case such notice be not so filed, then all persons claiming the benefit of the statute shall have ninety days “after the completion of said work of improvement within which to file their claims of lien. The phrase ‘work of improvement’ and the word ‘improvement’ as used in this chapter are each hereby defined to mean the entire structure or scheme of improvement as a whole.”