Cent. Lumber & Mill Co. v. Center

Citations

• 107 Cal. 193
• 40 P. 334
• 1895 Cal. LEXIS 733

Syllabus

<p>Appeal—Validity of Bond—Motion for Judgment Against Sureties. Where a bond on appeal has no validity as a statutory bond a motion for a judgment thereon against the sureties should be denied, even if shown to be supported by a consideration, and to be good as a common-law bond.</p> <p>Id.—Bond to Stay Execution—Foreclosure of Mechanic’s Lien.—A bond to stay execution upon appeal from a decree foreclosing a mechanic’s lien must be given under section 945 of the Code of Civil Procedure, concerning appeals from judgments or orders directing the sale of real property; and a mere bond in double the amount of the judgment against the owner of the premises, not conditioned as required by section 945, does not have the effect to stay execution of the judgment.</p> <p>Id.—Personal Action—Construction oe Code.—The personal action provided for in section 1197 of the Code of Civil Procedure is a simple action upon the contract against the person who purchased the materials for the contractor or owner, and has no reference to the lien given by the statute.</p> <p>Id.—Action to Foreclose Lien—Personal Judgment—Execution.— Where the action is to foreclose a mechanic’s lien upon the property of the owner plaintiff may recover the cost of filing the lien and attorneys’ fees which cannot be recovered in a personal action, and there is no mode of enforcing the judgment other than by a sale of the property and docketing a deficiency judgment against the defendant who may be liable therefor, and no execution as upon a mere personal judgment can be issued, unless by direction of the court, upon a showing that the property upon which the lien was adjudged is no longer available.</p>