DocketNumber: S.F. No. 3903.
Citation Numbers: 88 P. 982, 150 Cal. 265, 1907 Cal. LEXIS 515
Judges: McFarland
Filed Date: 1/10/1907
Status: Precedential
Modified Date: 10/19/2024
Three mechanics' lien cases were consolidated and tried together, and judgment was rendered against Dennis O'Connor and Mary O'Connor, the owners of the land involved, who appeal from the judgment.
The judgment must be reversed for the following reasons: 1. The actions were not brought by the original contractor; they were all brought for material and labor furnished by plaintiffs as sub-contractors. Nevertheless personal judgments were rendered against the appellants. This was error, as plaintiffs were entitled only to enforce their claims against the land.
2. There was a written contract between appellants as owners of the land and the contractors, Barth and Scarf, for the construction of a certain building thereon. This contract was regular in form and was recorded as provided by the code, and it is admitted that the rights of all parties rest on said contract, the contract providing that the building was to be built for seven thousand five hundred dollars and to be finished in five months — and if not finished within the five months the owners were to be allowed whatever damages the delay should cause. The building was not finished until about two and a half months after the stipulated time; and appellants averred and offered evidence to prove that they were damaged by the delay in the sum of $359.50. Respondents objected to this evidence, and the court sustained the objection upon the ground that appellants could not avail themselves of the damage, even if proved, because of a clause in section 1184 of the Code of Civil Procedure that "As to all liens, except that of the contractor, the whole contract price shall not be diminished by any prior or subsequent indebtedness, offset, or counterclaim, in favor of the reputed owner and against the contractor." But it was definitely settled in Hampton v. Christensen,
3. The court allowed an attorney's fee in each of the cases, and appellants contend that such allowance was erroneous because the statutory provision directing the allowance of such a fee is unconstitutional and void. In our opinion this contention must be sustained. In a few instances this court has affirmed judgments for plaintiffs in mechanics' lien cases which included attorney's fees; but our attention has not been called to any case where the question of the constitutionality of the statute providing for such fees has been raised, or presented to the court for adjudication. In the case at bar the question has been for the first time raised.
The statutory provision in question is found in section 1195 of the Code of Civil Procedure, and is as follows: "The court must also allow, as a part of the costs, . . . reasonable attorneys' fees . . . to be allowed to each lien claimant whose lien is established, whether he be plaintiff or defendant." It is to be noticed that this section provides for an attorney's fee to plaintiff but not to defendant, even though the latter be successful in the action; and that attorneys' fees are allowed even to plaintiff only in actions under the mechanics' lien law — the general rule being that "The measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties." (Code Civ. Proc., sec. 1021.) This provision is in our opinion violative both of the federal and the state constitution — of the fourteenth amendment of the former, which guarantees to every person "the equal protection of the law," and of the provisions of the state constitution which provide that general laws shall be uniform, prohibit special laws, and declare the inalienable rights of all men of acquiring, possessing, and protecting property. A statute which gives an attorney's fee to one party in an action and denies it to the other, and allows such fee in one kind of action and not in other kinds of actions *Page 269 where, as in the statute here in question, the distinction is not founded on constitutional or natural differences, is clearly violative of the constitutional provisions above noticed.
That said law is violative of the fourteenth amendment to the federal constitution was established by the supreme court of the United States in Gulf etc. Ry. Co. v. Ellis,
In the decisions of several states a statute similar to the one involved has been held unconstitutional. The question is elaborately discussed by the supreme court of Colorado inDavidson v. Jennings,
In Atkinson v. Woodmansee,
In Hocking Val. Coal Co. v. Rosser,
In Grand Rapids Chair Co. v. Runnels,
In Wilder v. Chicago Ry. Co.,
In the opinions rendered in the cases above noticed there are many citations of authorities sustaining the opinions; but we have been unable to verify these citations on account of the difficulty of access to books since the recent destruction here by fire of law libraries. We are satisfied with the reasoning on the point in the cases which we have cited and quoted from, and deem it unnecessary to discuss the matter further.
Upon the three grounds above stated the judgment must be reversed.
Appellants also make the contention that the court erred in allowing plaintiffs as costs the expense of filing their liens, upon the ground that the statute providing therefor is unconstitutional; but in our opinion this contention is not maintainable. The constitution imposes upon the legislature the duty of providing for these liens; and as the filing of the liens is part of the legislative method of perfecting them, we think that the small expense of such filing is properly included in the phrase "costs and disbursements."
The judgment is reversed, and the cause remanded for a new trial.
Henshaw, J., and Lorigan. J., concurred.
Hearing in Bank denied.
Wilson's Heating & Air Conditioning v. Wells Fargo Bank , 249 Cal. Rptr. 553 ( 1988 )
Guldberg v. Greenfield , 259 Iowa 873 ( 1966 )
Carpenter v. Ashley , 16 Cal. App. 302 ( 1911 )
Britt v. Cotter Butte Mines , 108 Mont. 174 ( 1939 )
Hobart Estate Co. v. Jones , 51 Nev. 315 ( 1929 )
Abbett Electric Corp. v. California Federal Savings & Loan ... , 281 Cal. Rptr. 362 ( 1991 )
Lewis & Queen v. S. Edmondson & Sons , 113 Cal. App. 2d 705 ( 1952 )
Powers Regulator Co. v. Seaboard Surety Co. of New York , 22 Cal. Rptr. 373 ( 1962 )
Sacramento Municipal Utility District v. Pacific Gas & ... , 20 Cal. 2d 684 ( 1942 )
Vinnicombe v. State of California , 172 Cal. App. 2d 54 ( 1959 )
Los Angeles Pressed Brick Co. v. Higgins , 8 Cal. App. 514 ( 1908 )