1173. Complaint must be amended in certain cases. When, upon the trial of any proceeding under this chapter, it appears from the evidence that the defendant has been guilty of either a forcible entry, or a forcible or unlawful detainer, and other than the offense charged in the complaint, the judge must order that such complaint be forthwith amended to conform to such proofs; such amendment must be made without any imposition of terms. No continuance shall be permitted upon account of such amendment, unless the defendant, by affidavit filed, shows to the satisfaction of the court good cause therefor. En. March 11, 1872. Am'd. 1885, 102.

Cal. Rep.Cit. 125, 566.

Continuance, generally: Ante, sec. 595.

§ 1174. Verdict and judgment. If, upon the trial, the verdict of the jury, or, if the case be tried without a jury, the finding of the court be in favor of the plaintiff and against the defendant, judgment shall be entered for the restitution of the premises; and if the proceeding be for an unlawful detainer after neglect, or failure to perform the conditions or covenants of the lease or agreement under which the property is held, or after default in the payment of rent, the judgment shall also declare the forfeiture of such lease or agreement. The jury, or the court, if the proceeding be tried without a jury, shall also assess the damages occasioned to the plaintiff by any forcible entry, or by any forcible or unlawful detainer, alleged in the complaint and proved on the trial, and find the amount of any rent due, if the alleged unlawful detainer be after default in the payment of rent, and the judgment shall be rendered against the defendant guilty of the forcible entry, or forcible or unlawful detainer, for three times the amount of the damages thus assessed, and of the rent found due. When the proceeding is for an unlawful detainer after default in the payment of rent, and the lease or agreement under which the rent is payable has not by its terms expired, execution upon the judgment shall not be issued until the expiration of five days after the entry of the judgment, within which time the tenant, or any subtenant, or any mortgagee of the term, or other party interested in its continuance, may pay into court, for the

landlord, the amount found due as rent, with interest thereon, and the amount of the damages found by the jury or the court for the unlawful detainer, and the costs of the proceeding, and thereupon the judgment shall be satisfied and the tenant be restored to his estate; but if payment, as here provided, be not made within the five days, the judgment may be enforced for its full amount, and for the possession of the premises. In all other cases the judgment may be enforced immediately. En. March 11, 1872. Am'd. 1873-4, 349.

Cal.Rep.Cit. 57, 192; 90, 501; 91, 598; 125, 566; 138, 283. Treble damages: See ante. sec. 735; Civ. Code, sec. 3345. Forfeiture, relief from: Post, sec. 1179.

1175. Verification of complaint and complaint and answer must be verified. 1872.

Cal.Rep.Cit. 59, 481; 60, 375.

Verification of pleadings: Ante, sec. 446.

answer.

The

En. March 11,

§ 1176. Effect of an appeal upon the judgment. An appeal taken by the defendant shall not stay proceedings upon the judgment, unless the judge or justice before whom the same was rendered so directs. En. March 11, 1872. Am'd. 1880, 9.

Cal.Rep.Cit. 71, 536; 73, 641; 81, 227; 135, 661; 135, 662.
Appeal as stay-generally: Ante, secs. 946, 949.

1177. Rules of practice. Except as otherwise provided in this chapter, the provisions of part two, of this code, are applicable to, and constitute the rules of practice in the proceedings mentioned in this chapter. En. March 11, 1872.

Cal.Rep.Cit. 91, 598.

For part two: See ante, secs. 307 et seq.

§ 1178. Appeals, how taken, etc. Provisions of part two of this code, relative to new trials and appeals, except in so far as they are inconsistent with the provisions of this chapter, apply to the proceedings mentioned in this chapter. En. March 11, 1872.

See ante, secs. 656 et seq., 936 et seq.

§ 1179. Relief against forfeiture of lease. The court may relieve a tenant against a forfeiture of a lease, and restore him to his former estate, in case of hardship, where application for such relief is made within thirty days after the forfeiture is declared by the judgment of the court, as provided in section one thousand one hundred and seventy-four. The application may be made by a tenant or subtenant, or a mortgagee of the term, or any person interested in the continuance of the term. It must be made upon petition, setting forth the facts upon which the relief is sought, and be verified by the applicant. Notice of the application, with a copy of the petition, must be served on the plaintiff in the judgment, who may appear and contest the application. In no case shall the application be granted except on condition that full payment of rent due, or full performance of conditions or covenants stipulated, so far as the same is practicable, be made. En. Stats. 1873-4, 350. Am'd. 1880, 9.

TITLE IV.

OF THE ENFORCEMENT OF LIENS.

Chapter I. Liens in General, § 1180.

II.

Liens of Mechanics and Others Upon Real
Property, §§ 1183-1203.

III. Certain Liens for Salaries and Wages, §§
1204-1207.

§ 1180. Definition of lien. A lien is a charge imposed upon specific property by which it is made security for the performance of an act. En. March 11, 1872.

Cal.Rep.Cit. 71, 73; 115, 179; 134, 131.

Lien, definition of: Civ. Code, sec. 2872.
Priority of liens: Civ. Code, sec. 2897.

CHAPTER II.

LIENS OF MECHANICS AND OTHERS UPON REAL PROPERTY.

1183. Mechanics' liens upon what.

$1183. Building contracts, what provisions to contain. (Repealed.) § 1181. Contract price payable in installments.

§ 1185. What interest in the land subject to the lien.

§ 1186.

§ 1187. 1188.

§ 1189.

1190. 1191. § 1192. 1193. § 1194. § 1195. § 1196.

§ 1197.

§ 1198.

§ 1199. 1200.

§ 1201.

1202. 1203.

Effect of liens.

Claim of lien to be filed in recorder's office.
Liens upon two or more pieces of property.
from each to be designated.

Claim to be recorded. Fees of recorder.
Time of continuance of lien.

Lien upon lot for improving.

Amount due

At instance of owner, what held to be constructed.
Contractor; liens for claims against.
Court to declare rank of liens.

Deficiency to be docketed.

Any number of lienholders may join in action.
Attachment, etc., against materials.

Lien does not impair right to proceed for recovery of the

debt.

Rules of practice.

New trials and appeals.

Where contractor fails to perform contract.

Written consent to waive claims.

What forfeits liens.

Bond of contractor to be filed.

Gen. Cit. to Chap.-Cal. Rep.Cit. 54, 220; 87, 591; 68, 266.

$1183. Mechanics' lien upon what. Mechanics, materialmen, contractors, subcontractors, artisans. architects, machinists, builders, miners, and all persons and laborers of every class performing labor upon or furnishing materials to be used in the construction, alteration addition to, or repair, either in whole or in part, of any building, wharf, bridge, ditch, flume, aqueduct, well, tunnel, fence, machinery, railroad, wagon road or other structure, shall have a lien upon the property upon which they have bestowed labor or furnished materials, for the value of such labor done and materials furnished, whether at the instance of the owner, or of any other person acting by his authority or under him, as contractor or otherwise; and any person who performs labor in any mining claim or claims, or in or upon any real property worked as a mine, either in the development thereof or in working thereon by the subtractive process, has a lien upon the same, and the works owned and used by the owners for reducing the ores from such mining claim or claims, or real property so worked as a mine, for the Code Civ. Proc.-38.

work or labor done or materials furnished by each respectively, whether done or furnished at the instance of the owner of such mining claim or claims or real property worked as a mine or of the building, or other improvement, or his agent; and every contractor, sub-contractor, architect, builder, or other person having charge of any mining, or work and labor performed in and about such mining claim or claims, or real property worked as a mine, or the construction, alteration, addition to, or repair, either in whole or in part of any building or other improvement as aforesaid, or of such mining claim or claims, either as lessee or under a working bond or contract thereon, with the privilege of purchase, or otherwise, shall be heid to be the agent of the owner for the purposes of this chapter. In case of a contract for the work between the reputed owner and his contractor, the liens shall extend to the entire contract price, and such contract shall operate as a lien in favor of all persons, except the contractor, to the extent of the whole contract price, and after all such liens are satisfied, then as a lien for any balance of the contract price in favor of the contractor. All such contracts shall be in writing when the amount agreed to be paid thereunder exceeds one thousand dollars, and shall be subscribed by the parties thereto; and the said contract, or a memorandum thereof, setting forth the names of all the parties to the contract, a description of the property to be affected thereby, together with a statement of the general character of the work to be done, the total amount to be paid thereunder, and the amounts of all partial payments, together with the times when such payments shall be due and payable, shall, before the work is commenced, be filed in the office of the county recorder of the county, or city and county, where the property is situated, who shall receive one dollar for such filing; otherwise, they shall be wholly void, and no recovery shall be had thereon by either party thereto; and in such case, the labor done and materials furnished by all persons aforesaid, except the contractor, shall be deemed to have been done and furnished at the personal instance of the owner, and they shall have a lien for the value thereof. En. March 11, 1872. Am'd. 1873-4, 409; 1880, 63; 1885, 143; 1887, 152; 1899, 33; 1903, 84.