Greely

Plaintiff appeals upon the judgment-roll alone in an action to foreclose an original contractor’s lien for street improvements, claimed by plaintiff under the provisions of section 1191 of the Code of Civil Procedure. The plaintiff alleged, and the court found, that the work upon which the lien was based was fully completed and performed on June 4, 1917; and that plaintiff’s claim of lien was filed in the office of the county recorder on August 6, 1917, more than sixty days after the completion of the work. From these facts the court reached the conclusion of lawr that the claim of lien was not filed within the time required by section 1187 of the Code of Civil Procedure and was, therefore, invalid. There is neither allegation in the complaint nor finding as to the filing, or want of filing, by the owner of the notice of completion provided for in said section.

The appeal presents the single question as to whether or not it is incumbent upon the plaintiff, in order to obtain the benefit of the ninety-day period for filing liens specified in the closing sentence of section 1187 of the Code of Civil Procedure, to allege and prove that the owner did not file the notice of completion…