Barber v. Reynolds , 33 Cal. 497 ( 1867 )

By the Court, Sawyer, J. :

Action to enforce a mechanic’s lien. Upon filing the complaint, plaintiffs obtained a preliminary injunction to restrain the removal of the building erected upon leased premises, upon which they claimed a lien. Defendants demurred on various grounds, and gave notice of motion to dissolve the injunction upon the pleadings. Afterwards, but within the time allowed plaintiffs to amend, as of course, by the sixty-seventh section of the Practice Act; they prepared and presented to the Judge an amended complaint, and he thereupon made an order “ that said amended complaint may be filed without prejudice to the said injunction heretofore ordered and issued as aforesaid.” The original motion to dissolve the injunction was afterwards heard and denied, and, subsequently, a motion to vacate the order granting leave to file an amended complaint without prejudice to the injunction, was also denied, and from these orders, refusing to dissolve the injunction and to vacate said order granting leave, the appeal is taken. If the amended complaint is sufficient to sustain the injunction, the motion to dissolve was properly denied, unless the amendment of the complaint proprio vigore worked a dissolution, or entitled defendants to a dissolution. The amended complaint supersedes the original, but there is no dismissal of the action. It simply takes the place of the other, bio new or different action is commenced, and no new cause of action is introduced. There is no change in the identity of the cause of action. That is the same as before, and the commencement of the action dates from the filing of the original complaint and issuing of summons thereon. The change consists merely in more fully setting forth the cause of action defectively alleged in the original complaint. It is the former complaint amended. The old complaint, in the form first filed, ceases, to be the complaint in the case, or to perform any further function, as a pleading, but the amended complaint falls into its place, and performs the same, and not different functions. The identity of the action is in no respect affected. This was so held in the very case cited by appellants. [Jones v. Frost, 28 Cal. 246.) The plaintiffs, after demurrer, and before the trial of the issue of law thereon, were entitled to amend as of course. (Practice Act, Sec. 67.) We know of no good reason upon principle why an amendment may not, by leave of the Court, or Judge, be made without prejudice to a preliminary injunction already granted. The injunction rests upon the same cause of action after amendment as before, and it. is in the same suit; and it is settled by the authorities that an amendment may be made on leave without prejudice to the injunction previously granted. (Seldon v. Vermilya, 4 Sandf. Ch. 573; 1 Hoff. Ch. 301; Warburton v. London and B. R. R. Co., 2 Bea. 254; Pratt v. Archer, 1 Sim. & St. 433; Pickering v. Hanson, 2 Sim. 488; Furness v. Brown, 8 How. 59; Walker v. Walker, 3 Kelley, 302; Lube Eq., 2 Am. ed., 88 ; Willard’s Eq. 342; 1 Eden on Inj. 149.)

Most of the other points arise on the original complaint, and are obviated by the amendments.

As to the point made under the second section of the Mechanics’ Lien Law, that contracts involving sums exceeding two hundred dollars must be alleged to be in writing, it is only necessary to say, that several of the contracts were for sums less than two hundred dollars; and that the allegations of the complaint, as we understand them, present a case falling under the seventeenth rather than under the first and second sections.

Another point is, that there is a misjoinder of parties plaintiff, for the reason that there is no community of interest in the several claims held by different plaintiffs. We think the statute relating to mechanics’ liens, authorizes the joinder. The Act provides a special remedy. It is not so clear as it might be upon some points, but there can be no doubt that it expressly authorizes in several instances parties holding several separate and distinct claims, without any community of interest in the claims themselves, to join in an equitable action to establish and enforce their liens. (Sections 6, 7, and 9.) And those holding liens in pursuance of section seventeen, as these plaintiffs do, may enforce them “ in the same manner as other liens hereinbefore provided for.” 'There is no limitation to any class of liens before provided; and uniting in one equitable action is a part of the manner provided, in some cases, at least, if not for all. And it is not clear that any were designed to he excluded.

We think the complaint, as amended, does show equities entitling plaintiffs to an injunction. The statute gives the plaintiffs a lien upon the building itself. This is their right. They were not bound to look to the personal responsibility of the pai-ties, and certainly not to the personal responsibility of strangers. They had a lien, and upon the faith of this statutory right, the materials were furnished. To remove the building beyond their reach, would be to utterly destroy this right and deprive them of their liens. Although not technically waste, the removal would be in the nature of waste. They show that the building is erected upon leasehold premises, and that without the building the lien would he valueless. They also show that the owners are insolvent, and that the claim of Green and Marsden, the parties threatening to remove the building, arises under a judgment subsequent and subject to the liens of plaintiffs. We find no error in the action of the Court below.

Orders affirmed.