Majority
Headnote
Mechanics ’ Liens—Foreclosure against Owner—Contractor not Summoned—Appeal—Service of Notice.—Upon appeal by the owner from a judgment foreclosing mechanics ’ liens against him, the contractor, who was a mere nominal party defendant, and was hot served with summons and cHd not appear, and against whom no judgment was rendered, need not be served with the notice of appeal.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
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.
Cases cited
- Denison v. Burrell 119 Cal. 180 p. 539
- Santa Monica Lumber & Mill Co. v. Hege 119 Cal. 376 p. 539
- Southern California Lumber Co. v. Jones 133 Cal. 242 p. 539, p. 541
- Wiggins v. Bridge 70 Cal. 437 p. 539
- Gibson v. Wheeler 110 Cal. 243 p. 539
- Dore v. Sellers 27 Cal. 588 p. 539
- Blythe v. Poultney 31 Cal. 233 p. 539
- Wells v. Cahn 51 Cal. 423 p. 539, p. 540
- Renton v. Conley 49 Cal. 185 p. 539, p. 540
- Dingley v. Greene 54 Cal. 333 p. 539, p. 541
- Rosenkranz v. Wagner 62 Cal. 151 p. 539, p. 540
- Whittier v. Hollister 64 Cal. 283 p. 539, p. 540
- O'Donnell v. Kramer 65 Cal. 353 p. 539
- Turner v. Strenzel 70 Cal. 28 p. 539, p. 540
- Harmon v. San Francisco & San Rafael Railroad 86 Cal. 617 p. 539, p. 541
- City of Santa Barbara v. Eldred 108 Cal. 294 p. 540
- Lancaster v. Maxwell 103 Cal. 67 p. 540
- Hinkel v. Donohue 88 Cal. 597 p. 540
- Merced Bank v. Rosenthal 99 Cal. 39 p. 540
- Clarke v. Mohr 125 Cal. 540 p. 540