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Emigh-Winchell Hardware Co. v. Pylman

31 Cal. App. 46 Court Third Appellate District. Decision date 1916-07-06 Docket Civ. No. 1582 English

Contents

Majority

p. 46
[Civ. No. 1582.
Third Appellate District.
July 6, 1916.]
EMIGH-WINCHELL HARDWARE COMPANY (a Corporation) , Appellant, v. AMOS PYLMAN et al., Respondents.

Headnote

Mechanics’ Mens — Equitable Jurisdiction — Appeal.—A mechanic’s lien is of equitable cognizance, although created by law; and an appeal in an action to foreclose the same lies to t'he supreme court.
APPEAL from a judgment of the Superior Court of Yolo County. W. A. Anderson, Judge.
The facts are stated in the opinion of the court.
Devlin & Devlin, for Appellant.
White, Miller, Needham & Harber, for Respondents.

This is an action to foreclose a mechanic’s lien and to bring about a sale of the premises should it be. necessary to enforce the payment as claimed.

It was said in Weldon v. Superior Court, 138 Cal. 427 , [ 71 Pac. 502 ]: “The action, so far as it sought to foreclose the lien against the premises, was unquestionably an equitable suit.” In Goldtree v. City of San Diego, 8 Cal. App. 505 , [ 97 Pac. 216 ], citing that case, it was said: “The contention that the lien is not of equitable cognizance because created by law cannot be considered. Such a distinction would destroy all equitable jurisdiction to carry out the provisions of the code. The remedy for the enforcement of the lien is clearly an equitable one. ’ ’

The jurisdiction is in the supreme court (Const., sec. 4, art. VI), and the case is therefore transferred to that court.

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