Mulcahy v. Buckley

Citations

• 100 Cal. 484
• 35 P. 144
• 1893 Cal. LEXIS 822

Syllabus

<p>Mechanics’ Liens—Record of Claim—Pleading—Denial for Want of Information.—In an action to enforce a mechanic’s lien, where the complaint alleges in due form that plaintiff filed and recorded his claim of lien in the recorder’s office, and sets out the claim of lien in full in the complaint, an answer denying the allegations thus made for want of information or belief upon the subject sufficient to enable the defendant to answer the allegations made, and placing the denial upon that ground, does not put such allegations in issue, and should be disregarded.</p> <p>Id.—Presumption of Knowledge—Means of Knowledge—Public Record.—A defendant is not at liberty to answer any allegation for want of information or belief upon the subject, sufficient to enable him to answer it, when he may be presumed to know, or when he is aware before answering, that he has the means of ascertaining whether or not such allegation is true; and such an answer is improper, where it appears that the defendant knew, before answering, that he could certainly ascertain whether or not plaintiff had recorded his claim of lien, as alleged in the complaint, by examining a public record in the county in which the lots upon which the lien is claimed were situated.</p> <p>Id.—Allowance of Costs—Attorney’s Fees.—It is not necessary in a complaint to foreclose a mechanic’s lien to aver what was paid by plaintiff for filing and recording the claim of lien, or what sum would be a reasonable attorney’s fee in the superior and supreme courts; but the right to recover these, like the ordinary right to recover costs, is a necessary incident to the judgment establishing plaintiff’s lien, and does not depend upon any averments in the complaint, except such as are necessary to establish the lien.</p> <p>Id.—Fee for Preparing Claim of Lien.—The plaintiff is not entitled to recover anything for an attorney’s fee paid for preparing his claim of lien, and an averment as to the amount so paid should he stricken from t