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  •          Creed Haymond, for Appellants, argued that by analogy to the Statute of Limitations, the defendants having failed to plead the limitations in the lien law, should be held to have waived it; and that the Court had no authority to set aside the judgment of its own motion. (Chester v. Miller, 13 Cal. 561.)           Van Clief, for Respondents, argued that the ninety days having expired before the commencement of the suit, there was nothing to support a judgment of foreclosure. As to the time for commencing action in such cases, he cited Flandreau v. White, 18 Cal. 629.
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  •          Creed Haymond, for Appellants, argued that by analogy to the Statute of Limitations, the defendants having failed to plead the limitations in the lien law, should be held to have waived it; and that the Court had no authority to set aside the judgment of its own motion. (Chester v. Miller, 13 Cal. 561.)           Van Clief, for Respondents, argued that the ninety days having expired before the commencement of the suit, there was nothing to support a judgment of foreclosure. As to the time for commencing action in such cases, he cited Flandreau v. White, 18 Cal. 629.
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Smart Summary

LACORE et al. v. LEONARD et al.

         OPINION

         By the Court:

         The plaintiff's lien had expired before his action was commenced. He took judgment foreclosing the lien, and directing a sale of the property by default; but on the next day, the matter being called to the attention of the Court, it was ordered that the judgment be so modified as to give him a money judgment only. There was no error in the action of the Court in this respect.

         Judgment affirmed.

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Lacore v. Leonard
(Jan 1, 1873)