Opinion
Department One
Appeal from a judgment of the Superior Court of Alameda County and from an order denying a new trial. F. W. Henshaw, Judge.
COUNSEL:
When an "original contract" is duly filed in compliance with section 1183 of the Code of Civil Procedure, the time for filing liens of all except the original contractor is within thirty days after the completion of all the work called for by its terms. (Roylance v. San Luis Hotel Co ., 74 Cal. 278; La Grill v. Mallard , 90 Cal. 375; Baird v. Peall , 92 Cal. 235.) The rule is the same although the contract is void under the statute. (Willamette etc. Co. v. Los Angeles College Co ., 94 Cal. 231; Barker v. Doherty , 97 Cal. 10; Silvester v. Coe etc. Min. Co ., 80 Cal. 510; Giant Powder Co. v. San Diego Flume Co ., 88 Cal. 20; 97 Cal. 263.)
Frank J. Fallon, and Parker & Eells, for Appellant.
Edward P. Cole, for Respondents.
Materialmen, subcontractors, and laborers must wait until the completion of the building before they can compel an owner to pay their claims by filing a lien, and they must file their liens within thirty days from that time. (Code Civ. Proc., sec. 1187; Willamette etc. Co. v. Los Angeles College Co ., 94 Cal. 237; Kerckhoff-Cuzner Mill etc. Co. v. Olmstead , 85 Cal. 83; Sparks v. Butte County etc. Co ., 55 Cal. 389; Dingley v. Greene , 54 Cal. 335; Roylance v. San Luis Hotel Co ., 74 Cal. 273; Schwartz v. Knight , 74 Cal. 433.) A lien filed before the completion of the building is void. (Barker v. Doherty , 97 Cal. 10; Roylance v. San Luis Hotel Co., supra .)
JUDGES: Harrison, J. Garoutte, J., and Van Fleet, J., concurred.
OPINION
HARRISON, Judge
The defendant MacDonough was engaged in the construction of a building in Oakland, and made several independent contracts for doing different portions of the work required for its construction, one of which was with his codefendant, McCarty, by which the latter agreed to do all the brickwork required in the building. The contract between MacDonough and McCarty, or any memorandum thereof, was not filed for record with the county recorder, and it was admitted at the trial that this contract was void. McCarty completed the work which he had agreed to do December 21, 1892, and the building was completed March 30, 1893. The plaintiff performed certain labor on the building under an employment therefor by McCarty, and on the 19th of January, 1893, filed in the recorder's office his claim of lien therefor, amounting to fourteen hundred and eighty-six dollars. The present action was brought for the foreclosure of this lien. Judgment was rendered in favor of the defendant.
It is contended by the appellant that he sufficiently complied with the statute by filing his claim of lien within thirty days after the completion of McCarty's contract, whereas the respondent contends that his filing it prior to the completion of the building was unauthorized, and that in so doing he failed to preserve his lien. The determination of this question is the only point involved upon this appeal.
Section 1183 of the Code of Civil Procedure provides that, if the contract or a memorandum thereof is not filed in the office of the county recorder before the work is commenced, it shall be wholly void, and the labor done and materials furnished by all persons except the contractor "shall be deemed to have been done and furnished at the personal instance of the owner, and they shall have a lien for the value thereof." If the contract is void, it is for all purposes as if no contract had been made, and the provision of the statute that the labor done shall be deemed to have been done at the personal instance of the owner, and giving him a lien therefor, makes it incumbent upon the laborer, if he would preserve the lien which is thus given him, to follow those provisions of the statute which are prescribed for preserving a lien, when the laborer has in fact performed his labor at the personal instance of the owner. In Pacific Mut. Life Ins. Co. v. Fisher , 106 Cal. 232, Merritt was an original contractor, and under the express terms of the statute he could file his claim of lien within sixty days after the completion of his contract, irrespective of the time when the building was completed. Section 1187 requires "every person, save the original contractor, claiming the benefit of this chapter" to file his claim of lien within thirty days after the completion of any building, improvement, or structure; and when the labor is performed under a direct employment by the owner, there is no original contractor. (Sparks v. Butte County Min. Co ., 55 Cal. 389.) The provisions of section 1187 are universal, and, if there is no original contractor, embrace "every person," and required the plaintiff to file his claim of lien with the county recorder within thirty days after the completion of the building. (Willamette etc. Co. v. Los Angeles College Co ., 94 Cal. 237.) [42 P. 451] As his claim of lien was filed before the completion of the building, it was premature, and gave him no right of recovery. (Roylance v. San Luis Hotel Co ., 74 Cal. 273.) As the owner is liable for the value of all the labor done and materials furnished in the construction of the building, and as suits to enforce the liens therefor must be commenced within ninety days after the filing of the claim of lien, there is a manifest propriety, where there is no valid contract for any of the work, in requiring that the building should be completed before any claims of lien are filed, in order that they may all be adjusted in a single action. If claims could be filed prior to the completion of the building, it might happen that it would be necessary to institute actions for their foreclosure before the building was completed, and while other laborers who would be entitled to have a lien thereon would be precluded not only from filing their claim of lien but from seeking its enforcement. But whether this was the purpose of the legislature or not is immaterial. It is the law as written, and we have no alternative but to follow it.
The contention of the appellant that the provision in section 1187 authorizing the claim of lien to be filed within thirty days after the completion of the "improvement" is to be construed as permitting the claim to be filed within thirty days after the completion of the particular work upon which the labor was performed is not only at variance with the language of the statute, but gives to the term "improvement" a different signification from that in which it is employed in other sections of the chapter. It must always be borne in mind that the remedy of a mechanic's lien is purely of statutory creation, and that the statute which creates the remedy prescribes, not only the mode of its enforcement, but also designates the objects upon which the laborer may have a lien for his labor. Section 1183 enumerates as the objects for which a lien may be enforced, "any building, wharf, bridge, ditch, flume, acqueduct, tunnel, fence, machinery, railroad, wagon road, or other structure," and the labor for which a lien is given must be performed "in the construction, alteration, addition to, or repair" of these objects, or one of them. In a subsequent portion of the same section these enumerated objects are grouped into "building or other improvement," and in subsequent sections they are designated as "building, improvement, or structure." It is thus evident that the term "improvement," as used in section 1187, is intended to embrace the several enumerated objects in the beginning of section 1183 other than "building" and "structure." By section 1184 the notice provided in that section is to be posted upon the "improvement," and by section 1185 the land upon which the "improvement" is constructed is made subject to the lien. In all these sections -- and others might be mentioned -- the term "improvement" is evidently used as equivalent to the object upon which the labor has been performed, and it would be an unwarranted application of the term to construe it as equivalent to the labor itself, or to that particular class of labor for which the claimant was employed.
The judgment is affirmed.