Nason v. John

82 P. 566, 1 Cal. App. 538, 1905 Cal. App. LEXIS 190

• Court: California Court of Appeal
• Decided: September 6, 1905
• Docket: No. 43.
• Status: Published

Opinion

HALL, J.

Defendant William John appeals from a judgment foreclosing a materialman’s lien for $129.39 against him as owner.

Respondent in his brief moves that the appeal be dismissed, because no notice of appeal was served on Williams, the contractor and co-defendant with appellant. The decree, however, recites that “defendant G. A. Williams, not having been served with process, was not before the court. ’ ’ No judgment was taken against Williams.

Defendants not served with process and not appearing, and against whom no judgment is taken, need not be served with notice of appeal. (Terry v. Superior Court, 110 Cal. 87, [42 Pac. 464]; Hinkel v. Donohue, 88 Cal. 597, [26 Pac. 374] Merced Bank v. Rosenthal, 99 Cal. 39, [31 Pac. 849, 33 Pac. 732]; Clarke v. Mohr, 125 Cal. 540, [58 Pac. 176].)

The motion to dismiss the appeal is denied.

Appellant contends that the judgment must' be reversed for the reason that the complaint states no cause of action as against appellant. This contention must be sustained. The-action is by a materialman against the owner (appellant) for the value of material (paints, etc.) furnished the contractor for the painting of the house of appellant.

There is in the complaint no attempt to allege that at the time of filing the notice of lien or of bringing the action there was anything owing from the owner (appellant) to the contractor, nor is any attempt made in the complaint to allege-any fact, such as a premature payment by the owner to the contractor, or the like, that under section 1184 of the Code of" Civil Procedure might be claimed to give the materialman a lien against the property of the owner for the value of his. materials.

That such an allegation is necessary to state a cause of" action in this class of eases is well settled by the following authorities: Turner v. Strenzel, 70 Cal. 28, [11 Pac. 389] ; Whittier v. Hollister, 64 Cal. 283, [30 Pac. 846]; Rosenkranz v. Wagner, 62 Cal. 151; Wells v. Cahn, 51 Cal. 423; Renton v. Conly, 49 Cal. 185. See, also, Harmon v. San Francisco etc. R. R. Co., 86 Cal. 617, [25 Pac. 174]; Southern California L. Co. v. Jones, 133 Cal. 242, [65 Pac. 378]; Dingley v. Greene, 54 Cal. 333.

There is no allegation in the complaint that the contract between the owner and the contractor was for an amount exceeding one thousand dollars, and therefore the contract was not such a one as is required to be in writing and recorded, and the whole contract price may have properly been payable in advance, or in such installments and at such times as the owner and contractor may have agreed upon. (Southern California L. Co. v. Jones, 133 Cal. 242, [65 Pac. 378].)

Judgment is reversed.

Cooper, J., and Harrison, P. J., concurred.