Civil No. 2431. First Appellante District. July 31, 1918. C. R. LAURENCE, Plaintiff and Appellant. v. PACIFIC OIL AND LEAD WORKS (a Corporation), Defendant and Respondent.

[1] STATUTE OF LIMITATIONS-FORMAL FINDING-WHEN UNNECESSARY. It is not necessary that the court find expressly as to the statute of limitations, where the facts found show that the action is barred.

Appeal from the Superior Court of the City and County of San Francisco Geo. A. Sturtevant, Judge.

For Appellant-Powell & Dow.

For Respondent-Pillsbury, Madison & Sutro, A. D. Plaw.

BY THE COURT:

The plaintiff brought this action to recover from the defendant damages for failure and refusal to deliver a certain quantity of oil in violation of an oral agreement. The answer, among other defenses, set up that the action was barred by subdivision 3 of section 338 of the Code of Civil Procedure, requiring an action for the taking, detaining or injuring of goods to be brought within three years; and also subdivision 1 of section 339 of said code, limiting to two years the time in which suit may be brought upon an obligation or liability not founded upon an instrument in writing. The complaint was filed on June 4, 1915.

The court found, evidently in response to the issue of the bar of the statute, that prior to the 24th day of April, 1912, the defendant had wholly failed and neglected to deliver said oil upon the order of plaintiff; and also that on the 23rd day of April, 1912, the defendant refused to deliver said oil to plaintiff's order, and notified plaintiff in writing of such refusal, and these findings are supported by the evidence. The court further found that the plaintiff was not injured by defendant's refusal to make the demanded delivery, and gave judgment in defendant's favor, from which plaintiff appeals.

The appellant claims that there is no evidence to support the finding of defendant's refusal in writing to deliver the oil; but the evidence is found in the sworn answer of the defendant in a previous action between the same parties concerning the same oil, in which the ownership by plaintiff of the oil or any interest therein was specifically denied, and it was also alleged that the merchandise belonged to another party, to whom it had been actually delivered by the defendant. This evidence was introduced by the plaintiff himself. His cause of action against the defendant immediately arose upon this categorical denial of any right or interest of the plaintiff in the merchandise.

The point is made by appellant that the court failed to find in terms upon the plea of the statute of limitations, which was a material issue in the case, and that it is not sufficient to find facts from which the bar of the statute may be inferred, citing the case of Duff v. Duff, 71 Cal. 513, in support of this contention. While it is true that the judgment in that case was reversed, the reversal was not had upon this ground, and later cases considerably weaken the force of what is said in the opinion in that case upon this point. In Water Co. v. Richardson, 72 Cal. 598, there was no find

ing in terms upon the plea of the statute; but the court said that "where probative facts are found, and the court can declare that the ultimate facts necessarily result from the facts which are found, the finding is sufficient." This principle was again announced in McCray v. Burr, 125 Cal. 636; and in Woodham v. Cline, 130 Cal. 497, it was said: "It is not necessary that the court find expressly as to the statute of limitations where the facts found or admitted show that the action is not barred." [1] We take it that the same principle must apply where the facts found show that the action is barred. And in the case last mentioned the court also said that "a party cannot be heard to complain of the absence of a finding upon a material issue if the finding must have been against him upon the record as presented."

It is quite evident from the present record that the trial court made the findings above recited in response to the issue of the statute of limitations; and it would be idle for this court to reverse the judgment for the purpose of requiring the trial court to make a formal finding in terms upon the bar of the statute when the fact of the bar is plainly covered by the findings as made. Such a reversal would be purely upon technical grounds, and out of harmony with the trend of recent decisions made under the authority of constitutional amendments designed to affect matters of procedure of the kind now under consideration.

In view of our conclusion upon this point it is unnecessary to discuss other contentions made by the appellant. The judgment is affirmed.

Civil No. 2439. First Appellate District. August 1, 1918.

ED HERTWECK and HUGH SPARKMAN, Plaintiffs and Respondents, v. JOSEPH FEARON and W. S. MCSWAIN, Defendants and Appellants.

[1] JUDGMENT LIEN-FIRST JUDGMENT PARAMOUNT-CONSTRUCTION OF SECTION 671, CODE OF CIVIL PROCEDURE.-Section 671 of the Code of Civil Procedure, which provides that "from the time the judgment is docketed it becomes a lien upon all the real property of the judgment debtor not exempt from execution in the county, owned by him at the time, or which he may afterwards acquire, until the lien ceases", construed to mean that the first judgment docketed is the paramount lien, irrespective of the time of acquisition of the property.

Appeal from the Superior Court of Fresno County-Geo. E. Church, Judge.

For Appellants-Wm. H. H. Hart.

For Respondents-G. L. Aynesworth and S. L. Strother.

The facts of this case are simple. On March 13, 1912, the defendant Fearon had judgment in the superior court of Fresno county against one Rauer for $513.25. The judgment was entered and docketed on that same day. On June 10, 1912, a judgment for $15.90 in favor of one Webb was docketed against Rauer in the superior court of Fresno county. On October 22, 1912, Rauer became the owner of certain land in Fresno county. Thereafter execution was issued on Webb's judgment, directed to the sheriff

of Fresno county, and the property of Rauer was levied upon and sold by the sheriff thereunder, on June 27, 1913, plaintiff being the purchaser. The property was not redeemed and a sheriff's deed was issued to the plaintiff before this action was begun. On May 10, 1915, the defendant Fearon secured a writ of execution on his judgment, directed to Sheriff McSwain, one of the defendants herein, and the sheriff thereupon levied on the same property and advertised it for sale to satisfy Fearon's judgment, whereupon the plaintiff began this action to enjoin the sale.

Two or three questions are raised by counsel, or rather, one fundamental question is stated in different ways by counsel in the case; for example: One judgment having been docketed on March 13, 1912, the other on June 10, 1912, the judgment debtor having acquired property within the county where the judgments were docketed, on October 22, 1912, and the property having been sold under the junior judgment, can its sale under the senior judgment be enjoined by the purchaser under the junior judgment? -or, to put it differently, which judgment takes precedence, the first docketed or that first executed?

The questions involve the construction to be placed upon section 671 of the Code of Civil Procedure, which provides that "from the time the judgment is docketed it becomes a lien upon all the real property of the judgment debtor not exempt from execution in the county, owned by him at the time, or which he may afterwards acquire, until the lien ceases". The question seems to be new in this state, but the supreme court of Oregon, in an opinion the reasoning of which is very satisfactory and convincing, under a statute precisely like our own, has determined the question and we are inclined to adopt the reasoning of that court upon the subject. (Creighton v. Leeds, Palmer & Co., 9 Ore. Rep. 216.) It is there held, after an elaborate discussion of the authorities bearing on the point, that under this statute there is a present inchoate right of lien created per verba de presenti, to take effect by relation when the property is acquired. The statute does not say there shall be a lien from the date of the acquisition of the property; it expressly makes the lien upon after-acquired property date from the date of the docketing of the judgment. "The legislature," says the court, "must be presumed to have meant what they have expressed. The court has no power to dispense with the words in the statute, 'from the date of the docketing'. Statutes are interpreted so as to give effect to all the words therein, if such an interpretation be reasonable, and be neither repugnant to the provision nor inconsistent with the objects of the statute." [1] The court held that the first judgment docketed was the paramount lien, and we are satisfied with that construction of the statute. The superior court in this case gave judgment for the plaintiffs, quieting their title against the superior judgment lien, enjoining the defendant Fearon and the sheriff from selling the property under Fearon's superior judgment lien. The judgment must be reversed.

A subsidiary question should be noticed, however, in passing, and that is, whether, as contended by respondent, the property should be sold and the proceeds of the sale prorated between the

two judgments, the contention being that they both took effect upon the acquisition of the property by Rauer. In view of our construction of the statute, no such prorata can be made.

The judgment is reversed.

We concur:

KERRIGAN, J.

ZOOK, J. pro tem.

BEASLY, J. pro tem.

Civil No. 1746. Third Appellate District. August 1, 1918. F. E. MCCREARY, Plaintiff and Respondent, v. TORONTO MIDWAY OIL COMPANY, LIMITED, Defendant; PIONEER MIDWAY OIL COMPANY et al., Defendants and Appellants.

[1] MECHANIC'S LIEN-SUPERINTENDENT OF OPERATIONS—INSUFFICIENCY. A claim of lien by plaintiff in which he alleged that he had been employed as superintendent of the oil operations of the defendant company and that his salary remained unpaid, was fatally defective, within the purview of section 1187, Code of Civil Procedure, as there was a total omission of the essential element of a lien, the performance of manual labor.

121

ID.-TIME OF FILING-WHEN PREMATURE EFFECT.-A claim of lien filed while the claimant is still employed is premature and confers no right for a lien.

Appeal from the Superior Court of Kern County-Howard A. Peairs, Judge.

For Appellants-Edmund Tauzsky, George E. Whilaker, T. N. Harvey.

For Respondent-S. Wyman Smith.

The action was to foreclose a mechanic's lien, and the appeal is from the judgment in favor of plaintiff and from an order denying a motion for a new trial. Respondent has made no appearance in this court and it is fair to assume that he has abandoned the case. His attorney in the court below died after the appeal was taken, and respondent failed to secure other counsel to represent him. The points made here for a reversal seem to have been urged at the trial and on the motion for a new trial, and we regret that we have not been furnished with the views of respondent and of the trial judge on the questions herein presented. However, we have given the record careful examination, and we are satisfied that respondent's claim for lien can not be maintained.

The second subdivision of section 1183 of the Code of Civil Procedure, as amended in 1911, gives persons who perform labor in any mining claim a lien for the value of the labor done, and it provides that the superintendent shall be considered the agent of the owner for the purposes of the Mechanic's Lien Act.

This is the only statute on the subject applicable to an oil well. (Berentz v. Belmont Oil Mining Company, 148 Cal. 577.) Plaintiff in his claim of lien stated "that since May 1, 1911, the claimant has been employed continuously by the Toronto Midway Oil Company, Limited, and is still so employed and no part of claimant's salary has been paid since March, 1912, and that the

claimant at all times since the 1st day of April, 1912, up to date has been employed continuously by the Toronto Midway Oil Company, Limited, as superintendent of the oil operations of the Toronto Midway Oil Company, Limited".

It is

It is to be observed that nothing therein indicates that he performed manual labor. It appears that the duties of superintendent were to supervise and direct the oil drilling operations for the purpose of developing and improving the premises. true that in his deposition plaintiff testified as follows: "My duties were looking after the things and handling the properties and in case of fishing jobs or anything like that helping the men at the well. All the men-four men steady and sometimes morewere under me; I hired them and laid them off, seen to and O.K.'d all orders and bills for work and material used in and about the premises. After the well was cemented, I pumped one tower for twelve hours, testing the well to see what it would do. I did this for several days. I had general control of all the property about the lease." The foregoing language may indicate that he did some actual labor on the mine, but even that was incidental to his main duty, which was of supervision and direction. But we may concede that there is sufficient evidence to show that he did manual labor, and in that respect that there is support for the allegation of the amended complaint, "that as such superintendent he did supervise and direct the oil drilling operations of said company, and in connection with such supervision and direction he performed manual labor". Yet, as far as the lien is concerned, his case can be no stronger than is set forth in his claim of lien, and in that, as we have seen, there is no statement as to manual labor. Section 1187 of the Code of Civil Procedure provides that the claimant must file a claim of lien "containing a statement of his demand after deducting all just credits and offsets, with the name of the owner or reputed owner, if known, also the name of the person by whom he was employed, or to whom he furnished the materials, with a statement of the price, if any, agreed upon for the same and when payable, and of the work agreed to be done and when the same was to be done, if agreed upon, and also a description of the property to be charged with the lien, sufficient for identification".

While all the provisions of the lien law are to be liberally construed with a view of protecting and promoting the legitimate interest of the laborer, or materialman, there must, of course, be a substantial compliance with the requirements of the law in order to enforce the remedy against the property. Assuredly, a total omission of the essential element of a lien, the performance of manual labor, leaves the claim too fragile to support any such judgment as was awarded herein. The claim of superintendent, as such, is not subject to lien, since it does not come within the purview of section 1187. (Durkheimer v. Copperopolis Copper Co., 104 Pac. 895.) [1] We conclude, therefore, for the reason stated, that the claim of lien was fatally defective.

[2] We think, also, that the claim of lien was prematurely filed. This was filed at 12:15 p. m. of August 22, 1912, but the claimant