74 Cal. 273 | Cal. | 1887
— As it appears to us, the notice of appeal-in this action was intended to embrace only that part of the judgment of the court below which affected the plaintiffs in adjudging that “ they take nothing against the defendant the San Luis Hotel Company, and that their complaint, in so far as it seeks to foreclose a lien, be and the same is hereby dismissed out of this court,” and “ that the defendant the San Luis Hotel Company do have and recover from the plaintiff its costs and disbursements now taxed at $20.25.” It was not intended to include in the notice any appeal from that portion of the judgment where the plaintiff recovered a personal judgment against Armstrong Brothers for a sum of money.
Taking all the terms of the notice of appeál together, it seems to us that the words “ said judgment,” where they occur in the last clause of the notice, refer, not to the whole judgment as rendered by the court, but to that part of it which is set out in the language of the notice preceding the last clause thereof, which language, fairly interpreted, includes only that part of the judgment which affects the hotel company and the plaintiff, but does not include that portion which affects the rights of Armstrong Brothers.
Therefore the appeal as taken should be entertained, notwithstanding that the counsel for Armstrong Brothers were not served with notice of the appeal.
But the complaint does not show that the plaintiffs are entitled to enforce any mechanic’s lien upon the building of the hotel company. For, as alleged in the complaint, the claim of lien was filed on the 13th of October, 1884, and the building was not completed until after that date. Hence, from that pleading itself, it appears that the plaintiffs prematurely filed their claim of lien, and according to their allegations could not enforce it.
In Perry v. Brainard, 8 Pac. Rep. 430, it was said:
“ ‘ Now, the amount of all the claims of all the subcontractors can be ascertained only after all the work and materials have been furnished and after the building has been completed, so far as the contractor is required to complete the same; for the whole of the work may in fact be done by subcontractors only, or the last item of work performed, or materials furnished, may be performed or furnished by a subcontractor. The building in such a case would be completed by a subcontractor; and the subcontractor completing the building, or furnishing the last item of work or material therefor, is entitled to his proportionate share of the general fund equally with the subcontractor who furnished the first item of work or material, or any intermediate portion thereof. Of course, when the contractor has furnished, through himself or his subcontractors, all the work and material which he has agreed to furnish, then the building is completed so far as he is concerned, and is jjilso completed so far as all the subcontractors under him are concerned; and the contractor and each of the subcontractors may then file their respective statements for liens, and each will then become entitled to his proportionate share of the fund.’
“ Other provisions of our statute go to show that this is the true construction of section 1187. Section 1190 declares that ‘ no lien provided for in this chapter binds any building, mining claim, improvement, or structure, for a longer period than ninety days after the same has
“It is obvious that if a subcontractor may file his claim before the completion of the building at all, it may very well happen that the building may not be completed until more than ninety days after the claim is filed, and since section 1190 of the code provides that no lien shall be binding for a longer period than ninety days after the same has been filed, unless proceedings be commenced in a proper court within that time to enforce the same, it follows that under such a construction of section 1187 a suit might be maintained to enforce the lien of a subcontractor before the completion of the original contract. This would not only be to give one subcontractor a preference over another not allowed by the statute, but might subject the owner to suit, and possibly his property to sale, although strictly conforming to his contract. In further harmony with the conclusion that section 1187 fixes a common starting-point fpr all subcontractors under the same original contractor, is section 1195, which provides that ‘ any number of persons claiming liens may join in the same action, and when separate actions are commenced the court may consolidate them/
“ The danger suggested by appellants’ counsel to subcontractors in thus holding is not perceived, for the owner who pays to the original contractor with notice that the subcontractor has not been paid will be liable to the lien of the latter, and it is an easy matter for the subcontractor to acquaint the owner with such fact.”
Although the views there enunciated are not binding as authority on the point, because of the fact that a rehearing was granted by the court in bank, and the cause
Wherefore the judgment appealed from should be affirmed.
Belcher, C. C., and Hayne, C., concurred.
The Court.—For the reasons given in the foregoing opinion, the judgment is affirmed.