Opinion
Rehearing Denied July 25, 1930
Hearing Granted by Supreme Court Aug. 21, 1930
Appeal from Superior Court, Los Angeles County; J. Walter Hanby, Judge.
Mechanic’s lien foreclosure action by Barker Bros., Incorporated, against Mannette S. Coates and others, consolidated with other similar actions. From an adverse judgment, named defendant and a certain other defendant appeal.
Reversed.
COUNSEL
Courtney A. Teel, of Los Angeles, for appellants.
Culver & Nourse and Glen Behymer, all of Los Angeles, W. Claire Anspach, of Glendale, John F. Poole, of Los Angeles, G.H. Wende, of Glendale, and Charles Murstein, of Los Angeles, for respondent.
OPINION
R.L. THOMPSON, J.
This is an appeal from a judgment foreclosing mechanics’ liens which are involved in several consolidated cases.
It is contended the findings of a referee, to whom the entire cause was submitted, were not adequate to support the judgment; that one of the complaints failed to state a cause of action and that the liens were waived by failure on the part of the claimants to furnish the owner of the property with verified claims of services performed and materials supplied.
The appellants owned certain lots in Los Angeles upon which they were engaged in constructing a bungalow under contract. They demanded in writing of the materialmen, pursuant to the provisions of section 1184 of the Code of Civil Procedure, a statement of the materials supplied for the structure. These statements were promptly furnished, except that they lacked the verification provided for by the statute. No objection to this omission, or to the sufficiency of the statements otherwise, was made by the owners. The claims were not paid. Several suits were thereupon instituted by materialmen to foreclose their mechanics’ liens. These cases were consolidated for trial. Over the objection of appellants the court ordered the appointment of a referee under subdivision 1 of section 639 of the Code of Civil Procedure "to try any and all issues of fact and law arising under the issues made by the pleadings." The referee thereupon heard the evidence adduced by the respective parties and rendered his report to the court without adopting specific findings. In the several cases the referee submitted to the trial court his conclusions or recommendations with respect to judgment in language no more specific than the following which was used with respect to the first case numbered 179,663: "Referee finds that plaintiffs should have judgment as prayed for in the complaint in the sum of $576.78, and so recommends." Upon motion, over appellants’ objection that the trial court was without jurisdiction to adopt findings independent of the referee, specific findings were adopted by the court and a judgment was entered accordingly. This appeal was thereupon perfected and is brought to this court on a bill of exceptions which contains none of the evidence adduced before the referee.
A referee duly appointed pursuant to subdivision 1 of section 639 of the Code of Civil Procedure has the power to "hear and decide the whole issue" of a cause when it is submitted to him by order of the court. Under such circumstances the referee must adopt findings of fact, which "must stand as the findings of the court," and upon the referee’s findings the judgment must be automatically entered either by the judge or by the clerk as an ordinary judgment is rendered and entered. Section 644, Code Civ.Proc.; 22 Cal.Jur. 697, § 14; National Brass Works v. Weeks, 92 Cal.App. 318, 268 P. 412; Lewis v. Grunberg, 205 Cal. 158, 270 P. 181. Where the entire cause is submitted to a duly appointed referee under subdivision 1 of section 639 of the Code of Civil Procedure, the trial court has no authority to modify or change the referee’s findings nor to adopt findings independently of the referee. It follows in the present case that the findings which were adopted by the trial judge are ineffectual and void for the purpose of supporting the judgment, and since the referee failed to adopt findings, there are no valid findings to support a judgment which must, therefore, be reversed on that ground.
The appointment of a referee pursuant to subdivision 1 of section 639 of the Code of Civil Procedure does not constitute the referee a pro tempore judge as that term is defined in section 72 of the Code of Civil Procedure. This last-mentioned section and article 6, section 8, of the Constitution as it then existed, affecting the appointment and authority of judges pro tempore, were repealed by implication in the enactment of the Initiative Judicial Council Act of California [see St.1925, p. 1369]. Martello v. Superior Court, 202 Cal. 400, 261 P. 476. The Constitution was subsequently amended to reinstate this provision too late, however, to affect this litigation. The repeal of the authority to appoint a pro tempore judge did not affect the validity of the appointment of a referee under section 639 of the Code of Civil Procedure. There is a clear distinction between the duties of a referee and those of a pro tempore judge. One significant difference is the fact that under no circumstances does a referee have the authority to render a judgment. The order appointing the referee in this case was therefore valid and binding.
It is claimed that the complaint in the action No. 179,663, entitled Lounsberry et al. v. Coates et al., in which a judgment was rendered against the defendants for $576.78, fails to state a cause of action for the reason that it is not alleged with respect to the value of several of the items for materials furnished for which a lien is claimed, that the respective sums were a reasonable valuation therefor.
It is true that section 1183 of the Code of Civil Procedure does provide that "said several liens shall not in any case exceed in amount the reasonable value of the labor done or material furnished, or both, for which the lien is claimed, nor the price agreed upon for the same." The challenged complaint, however, does specifically allege with respect to each item, with the exception of one, that the sums for which judgment is asked, were the agreed prices thereof. With respect to the other one item it is specifically alleged that sum is a reasonable value thereof. The allegation with respect to each item, therefore, was either the agreed price or the reasonable value of the materials. This is a sufficient compliance with the statute. In the absence of a demurrer we are of the opinion the complaint sufficiently states a cause of action.
By the bill of exceptions it appears without contradiction that the appellants demanded in writing of the several materialmen and laborers that they furnish the owner with a statement of all materials supplied and labor performed on the structure and that in compliance therewith "the materialmen *** rendered statements *** promptly *** and that neither of the defendants Coates objected to the form of said statements and made no further demand upon any of the defendants for any other statements or for a verified statement or notice."
It is conceded that the written statements in compliance with appellants’ demand pursuant to section 1184 of the Code of Civil Procedure were furnished by the several materialmen, except that these statements were not verified as required by that section. It is contended that the liens of these materialmen were waived by their failure to verify the claims. We think not. This section provides that a materialman "who shall on the written demand of the owner refuse to give such notice [that they have performed labor or furnished materials, or both] shall thereby deprive himself of the right to claim a lien." This section further provides that "such notice must be verified by the claimant," and "no such notice shall be invalid by reason of any defect in form, provided it is sufficient to inform the owner of the substantial matters herein provided for." It will be observed that it is only the laborer or materialman who "refuses to give such notice" that forfeits the lien. It is contended that, to comply with the law "such notice" implies it must of necessity be verified. This construction is correct, where the verification is insisted upon. But the verification may be waived. Under the circumstances of this case we are of the opinion it was waived. The claimants did not refuse to furnish a verified notice. On demand they promptly furnished the notice of materials supplied. It was a mere defective notice. Their attention was not called to the omission of the verification. The mere omission of the verification may not be construed into a refusal to comply with the law, in an absence of evidence to support that theory. The prompt furnishing of the statement, defective as it was, is evidence of an effort and intention to comply with the law. It refutes the theory of a refusal. When there is ample opportunity for the owner to advise the materialman of the absence of a verification of his claim, he may not complain of this omission so long as the notice otherwise complies with the law and the owner fails to complain of the defect. The spirit of this law is to the effect that a laborer or materialman forfeits his lien by a refusal to furnish the statement. A prompt compliance with the demand by supplying a defective statement may not be construed into a refusal so long as the omission is not wilful and the defect is not called to the attention of the claimant.
For the reason that the entire cause was submitted to the referee for decision and that he failed to adopt any specific findings of facts, the judgment is unsupported by findings and, therefore, void.
The judgment is reversed.
We concur: FINCH, P.J.; PLUMMER, J.