110 Cal. 506 | Cal. | 1895
The plaintiffs brought an action upon a contract made by them with the defendant Hopkins, for grading outside land blocks 664 and 665 in San Francisco, and to enforce a lien upon the land for such grading, and subsequently brought another action upon a contract made by them with the defendants Hopkins and Bowie, for grading the streets in front of said blocks, and to enforce a lien therefor upon the same land. The appellant, Loupe, held a mortgage upon
1. A motion was made on behalf of Bowie and Hopkins to dismiss the appeal upon the ground that the transcript filed herein was not authenticated, either by the attorneys or by the clerk of the superior court, and that it failed to show that the notice of appeal had been served upon them. Rule XV of this court provides that when notice has been given to the appellant of any objection to the transcript affecting the right of the appellant to be heard, “ it shall be the duty of the appellant to present and file at the hearing of the cause such additional record, if such there be, to remove or
The appellant is required to furnish this court with a copy of the -notice of appeal, and, although the statute requires that a copy of this notice shall be served upon the adverse party, there is no provision in the statute, or in the rules of this court, prescribing the mode in which such service shall be authenticated. The better practice is to have the proof of such service made a part of the record in the court from which the appeal ia taken, in order that there may be evidence in that court that the judgment has been removed therefrom. In such cases that record, when properly certified to this court, becomes conclusive of the facts therein stated, and no extrinsic evidence will be received to contradict it. (Boston v. Haynes, 31 Cal. 107; Boyd v. Burrell, 60 Cal. 280.) If, however, the record, as certified to this court, is silent upon the fact of such service, that fact-itself will not authorize a dismissal of the appeal. The jurisdiction of this court to hear an appeal depends upon the fact that the notice of appeal has been properly served, and not upon the proof of that fact being contained in the transcript; and, when an objection is
2. It is contended by the appellant that the notice of lien filed in behalf of the plaintiffs is defective for the reason that the contract for grading embraces two blocks of land, and that, under section 1188 of the Code of Civil Procedure, the claim of lien should have specified the amount due to them upon each block. The lien which is claimed by the plaintiffs is, however, authorized by section 1191 of the Code of Civil Procedure, and not that which is authorized by section 1183. Section 1191 gives to the contractor a lien upon the “ lot” for his work done, while section 1183 gives him a lien upon the “ building or other improvement”; and in Davis v. MacDonough, 109 Cal. 547, the “improvement” upon which a lien is authorized by section 1183 is held to refer to the objects enumerated in that section upon which the labor was performed, or for which the materials were furnished. “ The buildings, mining claim, or other improvements” named in section 1188 have the same significance as in section 1183, and the clause in section 1191 giving to the contractor a lien upon the “ lot ” which he grades or fills, or “ otherwise improves,” refers to some improvement of the “lot” upon which the lien is given, rather than to the “improvements”' upon the lot referred to in section 1188. While section 1188 requires the claimant who files a lien against two or more buildings, or other improvements, to designate
The appellant, however, contends that, as the contract for grading the streets in front of the blocks was made subsequent to the recordation of his mortgage, the lien therefor is subordinate to the lien of his mortgage, and that the court should have directed that the mortgage debt be paid prior to allowing the plaintiffs any compensation for grading the streets. As a proposition of law this contention is correct, but the record fails to authorize its application. The court finds the amount that was unpaid under the contracts for grad
The motion to dismiss the appeal is denied, and the judgment and order are affirmed.
Garoutte, J., and Van Fleet, J., concurred.
Hearing in Bank denied.
Beatty, C. J., dissented from the order denying a hearing in Bank.