210 P. 625 | Cal. | 1922
There are two appeals presented for our consideration in this case; one an appeal from the judgment, the other an appeal from an order refusing to set aside the said judgment and permit the plaintiff to file an amended complaint. A review of the history of the litigation is essential to the proper determination of both appeals. The litigation arose out of the construction, alteration and repair of the Owens River canal in the county of Inyo. A written contract had been entered into between the defendant herein and one Snyder for the performance of said work for the stipulated price of $19,000; said Snyder was required by the terms and conditions of said contract to furnish an undertaking for the due performance of said work, and the plaintiff herein became his surety upon such undertaking. The contract with Snyder was not recorded. Snyder, having failed to perform, the plaintiff took over the work remaining to be done under said contract and completed the same. Having done so, he undertook to assert a lien for the amount due for his said work under the provisions of section 1183 of the Code of Civil Procedure, providing that in the absence of the recordation of such a contract it "shall be wholly void and no recovery shall be had thereon by either party thereto; and in such case the labor done and materials furnished by all persons aforesaid, except the contractor, shall be deemed to have been done and furnished at the personal *90 instance of the owner and they shall have a lien for the value thereof."
In his complaint for the foreclosure of said lien the plaintiff alleged that after the failure of said Snyder to perform said contract an agreement had been entered into between the plaintiff and the defendant, by the terms of which the former was to proceed to complete the work done under said contract, and said plaintiff demanded a personal judgment against the defendant for the amount expended by him in completing said work under said new agreement between himself and the defendant and for the foreclosure of his lien under said section of the code. The plaintiff recovered a judgment in his favor in said action. The defendant took an appeal from such judgment, which appeal came before the district court of appeal for the second district for hearing and was, on July 29, 1914, determined by said court, at which time said judgment was reversed. (Watterson v. Owens River Canal Co.,
A petition for rehearing was denied by this court September 26, 1914, and the remittitur upon said appeal was filed in the superior court on October 1, 1914. Thereafter, and on March 13, 1915, the plaintiff moved the trial court for leave to file an amended complaint in said action, setting forth with much of detail therein in several counts the alleged agreement between the plaintiff and the defendant for the completion of said work after the abandonment by *91
Snyder of the said contract. The motion of the plaintiff for leave to file this amended complaint was denied on March 16, 1915. On the twenty-fourth day of April, 1915, the plaintiff again moved to amend his former complaint by striking out those portions thereof which referred to his appeals and foreclosure of a lien under the provisions of section 1183 of the Code of Civil Procedure. His complaint as thus amended consisted in the plaintiff's asserted right to recover a personal judgment upon the basis of his alleged agreement with the defendant, by the terms of which he was to complete said work. It was upon the complaint as thus amended that the action was brought to trial a second time, before a jury, in the course of which the plaintiff presented certain evidence as to the existence of said subsequent agreement between himself and said defendant for the completion of said work. At the conclusion of the plaintiff's case the defendant moved for a nonsuit upon several grounds, among which was the ground that the evidence introduced by plaintiff in support of his alleged cause of action wholly failed to prove the existence or making of any contract by and between the plaintiff and the defendant as alleged in the plaintiff's complaint and upon which his cause of action was based. The trial court granted the defendant's said motion for nonsuit and in addition thereto instructed the jury to return a directed verdict in the defendant's favor, and, in accordance with such instruction, the jury returned such verdict, and a judgment in favor of the defendant was entered thereon. An appeal was taken by the plaintiff from this judgment to the district court of appeal for the second district and upon hearing therein said judgment was affirmed on July 24, 1919. (Watterson v. Owens River Canal Co.,
[1] Upon his appeal from the judgment of abatement, based, as it was, upon the pendency of the former action, the appellant insists that under the express provisions of section
[2] The effect of the reversal of the judgment in the plaintiff's favor upon the first appeal was that of remanding the cause to the trial court for a new trial. (Stein v. Leeman,
A brief history of the origin and application of section
[3] The plaintiff upon his second appeal insists that the trial court was in error in denying his motion to set aside the judgment of abatement therein after it appeared that the former action had been terminated by the affirmance of the judgment upon the second appeal; and was further in error in refusing to allow him leave to file a third amended complaint. There is no merit in either of these contentions. The judgment of abatement was a final judgment and terminated the action. (1 C. J. 26, 27; Klamath Lumber Co. v. Bamber,
The judgment and order are affirmed.
Lennon, J., Waste, J., Wilbur, J., Lawlor, J., and Shaw, C. J., concurred.
Rehearing denied.
*97All the Justices present concurred.