Clark v. Taylor , 91 Cal. 552 ( 1891 )

Belcher, C.

This is an action to foreclose a lien for materials alleged to be of the value of $149.35, and to have been furnished for and used in the construction of a house for defendant. The plaintiffs had judgment as prayed for, and the defendant appeals on the judgment roll.

Only two grounds are urged for a reversal of the judgment: 1. It is contended that the court erred in sustaining a demurrer to defendant’s amended answer and counterclaim; and 2. That the court erred in sustaining a demurrer to defendant’s cross-complaint.

1. It is not shown by the record that any demurrer was interposed or sustained to the amended answer and counterclaim. This point cannot, therefore, be considered,

2. We think the demurrer to the cross-complaint was properly sustained. The action was a proceeding in equity to foreclose a lien for materials alleged and found to have been contracted for on the seventh day of December, 1888, and to have been furnished between that day and the first day of January, 1889. The cross-complaint alleged that defendant, “to avoid threatened litigation,” paid to plaintiffs, on the thirtieth day of November, 1888, a sum of money in excess of what was then due them for materials before that time furnished, and it asked judgment for such excess. The cause of action set up in the cross-complaint did not relate to or depend upon the contract or transaction upon which the plaintiffs’ action was brought, nor did it affect the property to which the plaintiffs’ action related. The cross-complaint was, therefore, not authorized by section 442 of the Code of Civil Procedure. Besides, the same matters were set up in the counterclaim, and under that pleading were properly cognizable.

Respondents ask, in case the judgment is affirmed, that they be allowed a reasonable attorney’s fee in this court, citing section 1195 of the Code of Civil Procedure, which provides that in cases of this kind the court must allow “ reasonable attorneys’ fees in the superior and supreme courts.” The respondents were allowed an attorney’s fee in the court below, and they seem, under this section, to be entitled to one here.

We therefore advise that the judgment be affirmed, and that respondents be allowed a reasonable sum as an attorney’s fee in this court.

Vanclief, C., and Fitzgerald, C., concurred.

The Court.

For the reasons given in the foregoing opinion, the judgment is affirmed, and the court below is directed, upon the filing of the remittitur therein, to allow the plaintiffs, as a part of their costs on this appeal, a reasonable fee for the services of their attorney in this court.

Hearing in Bank denied.