Opinion
Appeal from the Ninth District.
This case was before this Court at the April term, 1859, and is reported in 13th Cal. 54. On the return of the cause to the Court below, in accordance with the judgment of the Supreme Court, plaintiff amended his complaint by making Spencer a party. The case proceeded to trial, when plaintiff having introduced Ball and others as witnesses upon various points, but not attempting to prove their liens, rested. Shea, one of the defendants, who held a mortgage, then moved for a nonsuit on the ground: 1st. That plaintiff had not complied with the Act of 1856, as to mechanics' liens, by proving that he had published the notice required by the seventh section of the act to other parties claiming liens, and had not shown that he had obtained judgment on his own claim, and that hence no other liens could be proved; and that, under the amendments of 1858 to that act, he could not prove his own lien. 2d. That it appears by the remittitur from the Supreme Court that the former judgment of this Court against the assignee of Ball was reversed; and that hence the cause should now have been tried de novo; and that the mechanic's lien of plaintiff and all other persons coming in under his notice, as required by statute, should have been fully established, as upon original suit
Motion overruled, for the reason that judgments were rendered in this cause establishing liens in favor of the claimants, from which judgments no appeal was taken to the Supreme Court; and for the further reason that the suit was commenced in 1857, before the law affecting mechanics' liens required the proceedings now required by the act of 1858. Shea excepted. The Court gave judgment in favor of the plaintiff and other lien holders, and decreed a sale of the premises to satisfy the same.
Defendant Shea appeals.
Judgment affirmed.
COUNSEL
R. T. Sprague, for Appellant.
James D. Mix, for Respondents.
JUDGES: Cope, J. delivered the opinion of the Court. Field, C. J. and Baldwin, J. concurring.
OPINION
COPE, Judge
The rights of the parties to this appeal were settled by the former decision of this Court, 13 Cal. 54, and we cannot consider them a second time. The case falls within the principle of Soule v. Dawes, 14 Cal. 248 .
Judgment affirmed.