176 P. 166 | Cal. | 1918
Lead Opinion
This is an appeal from a judgment in plaintiff's favor in an action to foreclose a material-man's lien. Two questions are presented upon this appeal. The first relates to the issue as to whether the claim of lien was filed within the time permitted by statute for the filing of such liens. As to this question it is conceded that it has been settled in respondent's favor by the case of Hughes Mfg. Lumber Co. v.Hathaway,
The other point presented upon this appeal relates to the sufficiency of the description of the property against which the plaintiff's claim of lien was filed, which is herein sought to be foreclosed as the same appears in the judgment from which this appeal is taken. Said description is as follows:
"The northerly portion of block 413-B, of the city of Bakersfield, according to the map of said city of Bakersfield, filed in the office of the county recorder of Kern county, November 25, 1898."
We are of the opinion that the appellant's contention that this description, as embodied in the judgment herein, is insufficient must be sustained. The case of Union Lumber Co. v.Simon,
In the case of Rall Bros. v. McCrary,
" 'The best rule to be adopted is, that if there appear enough in the description to enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty, to the exclusion of others, it will be sufficient. There is great reluctance to set aside a mechanic's claim merely for loose description, as the acts generally contemplate that the claimants should prepare their own papers; and it is not necessary that the description should be either full or precise.' (See, also, Kennedy v. House, 41 Pa. St. 39, [80 Am. Dec. 594]; McClintock v. Rush, 63 Pa. St. 205;Northwestern Cement etc. Co. v. Norwegian etc. Seminary,
"In an action to foreclose the lien, it is, however, necessary that the property which the plaintiff seeks to subject to a sale therefor should be definitely described, and that the judgment should specifically designate the property affected by the lien and directed to be sold, otherwise the officer executing the judgment can neither point out the property which he offers for sale, nor place the purchaser in possession thereof, and the deed which he may execute will not convey any title; and as the judgment must follow the complaint, it is essential that the complaint should itself contain such specific description." *232
In the case at bar the appellant does not assail the sufficiency of the description in the plaintiff's claim of lien in the answer and does not do so in the briefs upon appeal, but, on the contrary, concedes that "it is probably sufficiently complete for identification and therefore would constitute a valid description so far as the lien is concerned." The appellant's attack is confined to the judgment and under the rule declared in the cases above cited the contention of the appellant as to the insufficiency of the description as embodied in the judgment herein must be sustained.
Judgment reversed.
Sloss, J., and Victor E. Shaw, J., pro tem., concurred.
Hearing in Bank denied.
In denying a hearing in Bank the court filed the following opinion on December 12, 1918, thereon:
Addendum
The petition for hearing in Bank is denied.
The effect of the reversal of the judgment is to return the case to the trial court for a new trial and for such proceedings therein, including the right of the respective parties to make such application to amend their pleadings as they may be advised, as though there had been no previous trial of the action.