83 Cal. 368 | Cal. | 1890
This was an action to foreclose a number of liens upon a mine for labor and materials, under the act of 1880. There were forty-five plaintiffs, each claiming a separate lien. Judgment was given for the plaintiffs, and two of the defendants appealed.
1. The summons is sufficient. It states the nature of the action in general terms, and this is all the statute. requires. It is apparent from the statements of the summons that the action in which it was issued was to recover money and to foreclose liens. This is the general nature of the action. It is unnecessary to state whether the right to the money sought to be recovered accrued from work and labor, or from goods sold and delivered, or to state the kind of lien, or on what property the lien attached. All these things appear in the complaint on file, of which filing he is notified by the summons, and if he is not notified, he is bound in law to know it. He is bound to know that a complaint has been filed; for otherwise a summons could not issue. It makes no difference that a copy of the complaint is not served on the party moving. The above is in accordance with the dictum in Lyman v. Milton, 44 Cal. 631. The summons states what the statute requires and all that is needful. The cases decided in Lyman v. Milton, supra, as also Ward v. Ward, 59 Cal. 141, were different
• 2. The findings are insufficient to support the judgment against the appellant Trumbo. In each count it was alleged that the plaintiff performed labor, etc., that the defendant promised to pay therefor at a fixed rate, and that the sum due therefor was unpaid. These allegations were denied in each case, and the findings are simply of the performance of the labor, and that on a certain day (before the commencement of the action) “ there loas due for said work and labor an unpaid balance of $-” (naming it).
A finding that a certain sum was “due and unpaid ’’
3. The appellant Trumbo was alleged to claim a lien upon the property by virtue of a mortgage which appears to have been made before most of the plaintiffs’ liens attached. The complaint alleged that this mortgage was without consideration, “ and in fraud of the plaintiffs.” The question as to the priority of this mortgage over the plaintiffs’ liens was a material one. The court found that it was without consideration, but made no finding as to fraud. The decree was that the property should be sold, and the proceeds applied first to the payment of the plaintiffs’ claims. In this there was error. Assuming, for the purposes of the opinion,'that the bare statement that the mortgage was u in fraud of the plaintiffs ” is a sufficient averment that it was made for the purpose of hindering, delaying, or defrauding creditors, the court should have found upon the question of fraud. Those of the plaintiffs whose liens were subsequent in point of time to the mortgage could attack it onlj' upon the ground that it was made to hinder, delay, or defraud creditors. The mere fact that it was without consideration is not the equivalent to this. (Civ. Code, sec. 3442.) It was error, therefore, to decree that all the plaintiffs should be first paid out of the proceeds of sale in the absence of a finding of fraud.
If it shall turn out that some of the land involved here was of that character, then it is not liable. But its inclusion in the notice of lien does not vitiate it if any part of it was a mine. The court can adjust the rights of the parties by its decree. (Malone v. Big Flat Co., 76 Cal. 583.) We think, also, that the phrase “ mining ground,” used in the findings, is sufficient to designate and include the property upon which liens were claimed.
The judgment is reversed, and the cause remanded for a new trial.
Ti-tornton, J., Beatty, 0. J., McFarland, J., Fox, J., and Paterson, J., concurred.