102 P. 554 | Cal. Ct. App. | 1909
Appeal by defendant Holt Manufacturing Company from an order after judgment vacating such judgment and giving plaintiff leave to file an amended complaint.
The plaintiff on November 10, 1906, filed his complaint against defendants, in which he set up as a first cause of action that between June 1 and November 1, 1906, he had, at the instance and request of defendant Hubbard, performed work in, about and upon a certain threshing-machine, known as the Holt Combined Harvester, while engaged in threshing and in the use and possession of Hubbard, all in the counties of Tulare and Kern; that Hubbard agreed to pay for said services $686, which sum was a reasonable compensation for such services, and no part of which has been paid, except the sum of $131.60, and that there remained due, owing and unpaid from defendant Hubbard to plaintiff for such services the sum of $554.40; that the defendant Holt Manufacturing Company claimed some interest in said harvester, but that the same was subordinate to plaintiff's claim; that plaintiff claims a lien upon said steam harvester for such work and labor by the action commenced within ten days after cessation of the work. In thirteen subsequent causes of action plaintiff set out the performance of work and labor by various persons at the request of Hubbard and the reasonable value thereof; that cessation from work was had on November 1, 1906; that each of said persons so performing said labor claimed a lien upon the Holt Combined Harvester, and that each and all of said persons performing labor had assigned and transferred their claims for labor and the lien claimed thereunder to plaintiff; and that plaintiff claimed a lien by virtue of the act of March 21, 1905, [Stats. 1905, p. 618], upon said combined steam thresher for all of such work and labor, and in each cause of action it was averred that the Holt Manufacturing Company claimed some interest in said steam thresher, subordinate, however, to the claim of lien of plaintiff. The prayer was for the aggregate amount of all of the claims for work and labor, including that of plaintiff and *474 those assigned to him, for attorney's fees, for the enforcement and foreclosure of the lien of plaintiff as against the steam harvester and its appliances, under the act above mentioned, and that a special execution issue for the sale of said harvester.
This complaint was verified, summons issued thereon and served upon defendants, and within due time, no appearance or answer having been filed, default of defendants was regularly entered and judgment was rendered in favor of plaintiff and against defendant Hubbard for the amount claimed in the complaint; and it was ordered and decreed that plaintiff had a lien on the steam harvester for the aggregate amount of such work and labor, and for certain attorney's fees and costs, and the execution was directed to issue for the sale of said harvester. That thereafter an execution was issued and the same was levied upon said harvester. That thereupon the appellant paid into the hands of the clerk of the court, for the use of plaintiff, the sum of $580.40, the amount of the first cause of action, and instituted an action in claim and delivery against the sheriff under which he took possession of said threshing machine. Thereupon, on the twenty-first day of February, 1907, plaintiff moved the court to vacate the judgment theretofore entered in his favor, praying the court that he be permitted to file an amended complaint, setting forth that such judgment was made and entered through mistake, inadvertence, surprise and excusable neglect of plaintiff, as shown by affidavits set out in the transcript. The court, upon the hearing of this motion, made its order vacating the original judgment and gave plaintiff leave to file an amended complaint, from which last-mentioned order this appeal is taken.
It will be observed that all of the causes of action, from the second to the fourteenth, inclusive, were incomplete in that it is not averred that the work or labor was performed in, with, about, or upon the threshing-machine. The act of March 21, 1905 (now section
Order affirmed.
Shaw, J., and Taggart, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 24, 1909.