Summary
In Brennan v. Swasey, 16 Cal. 140, we held that it was unnecessary to set out the items of the account, and that nothing more was required than a statement of the demand, showing its amount and character.
Summary of this case from Selden v. MeeksOpinion
Appeal from the Ninth District.
Suit originally against one Young, to enforce a mechanic's lien. Plaintiffs performed work and furnished material for Young, and in due time, to wit: August 9th, 1858, filed their notice of lien. The account is in general terms, stating the amount, and that it was for work and materials, but without giving the items. Young having given plaintiffs his note for the larger portion of this claim, they brought suit on it against him by attachment, August 9th, 1858, and levied it on the property against which their lien existed, and other property of the debtor. No answer was filed, no default or judgment taken, no money paid, and the suit dismissed January 25th, 1859.
September 25th, 1858, Loag, intervenor herein, began suit against Young, to foreclose liens acquired August 9th, 1858, by him, on the same premises. After regular publication of notice of this suit, according to the statute, plaintiffs here and one Kempt, who also filed a lien and attached August 9th, 1858, appeared on the day required in such notice; but the attachment suits being still in force, they dismissed the petitions filed by them under Loag's notice, without prejudice, and Loag, January 27th, 1859, had decree for his debt, the property was sold thereunder and bought in by him. He now resists the enforcement of the liens of plaintiffs and Kempt. Kempt took judgment in his attachment suit. Kempt intervenes in this suit, and asks leave to prove his account and lien. Loag intervenes, and avers that he is in possession of the property under his judgment and the sale thereunder; that plaintiffs filed their attachment suit before they filed their lien, though on the same day; and that they have no valid claim on the premises.
The Court below gave plaintiffs judgment for the amount of their lien against the administrator of Young, who died pending the suit, but refused to enforce the lien against the property. Plaintiffs appeal.
Judgment of the Court below reversed, and the cause remanded for a new trial.
COUNSEL
1. The only effect of the failure of plaintiffs to prove up their lien under the notice given by Loag is, that he acquired the right to be first satisfied, to the extent of his lien, out of the proceeds of the sale of the property.
2. Plaintiffs did not, by their attachment suit, elect that remedy andforfeit their lien. (Black v. Lackey, 2 B. Munroe, 257; Peak et al. v. Bull et al., 8 Id. 429; Coleman v. Cross, 4 Id. 269; Gibson v. Findley, 4 Md. Ch. Dec. 75; Bradford v. Williams, 2 Id. 1; Jackson v. Burlett, 8 Johns. 361; Almy v. Harris, 5 Id. 175; Wells, Fargo & Co. v. Robinson, 13 Cal.)
R. T. Sprague, for Appellants.
Isaac Baggs, for Loag, Respondent.
1. The plaintiffs elected to pursue the remedy by attachment, instead of enforcing their lien, and hence abandoned the latter. They could not attach, if they were secured by a lien, and making the oath on the attachment, shows they waived the lien. (Wells, Fargo & Co. v. Robinson, 13 Cal and cases cited.)
2. The items in an account for a lien need not be given (Heston v. Martin, 11 Cal. 41 .)
JUDGES: Cope, J. delivered the opinion of the Court. Baldwin, J. concurring.
OPINION
COPE, Judge
The decree in this case cannot be maintained. The lien claimed by the plaintiffs was properly secured under the statute. It was unnecessary to set out the items of the account. Nothing more was required than a statement of the demand, showing its nature and character, and the amount due or owing thereon.
The plaintiffs did not waive their lien by bringing an action, and causing an attachment to be issued and levied upon property of the debtor to secure the same demand. The two remedies are cumulative, and both may be pursued at the same time. In case of an attempt to pursue them in separate actions, the party might be put to his election, but it is no defense to an action to enforce the lien that in a previous suit for the same debt an attachment was issued and levied upon the property of the debtor, and particularly where, as in this case, such suit has been dismissed, and nothing realized by the attachment.
Judgment of the Court below reversed, and the cause remanded for a new trial.