Opinion
Appeal from the District Court of the Eleventh Judicial District, County of Yolo.
This was an action to recover the sum of $ 2,256, for work and labor, and materials furnished, and to foreclose a mechanic's lien on certain premises.
The defendants plead a former suit pending between the same parties, and for the same subject-matter, but failed to show that a summons had been issued and returned in the former suit. The Court below gave judgment for the plaintiff, and decreed the foreclosure of the mechanic's lien. Defendants appealed.
COUNSEL:
B. F. Ankeny, for Appellants.
John Heard, for Respondents.
JUDGES: Terry, C. J., delivered the opinion of the Court. Field, J., and Baldwin, J., concurring.
OPINION
TERRY, Judge
The first and second assignments of error are not supported by the record.
The third is not well taken. To support a plea in abatement founded on the pendency of a prior action, it is necessary to show that process was issued in such action. (See Weaver v. Conger , 10 Cal. 233.)
The fourth is not supported by the record. Upon the whole, it appears that the appeal was taken merely for delay, and the judgment is affirmed, with ten per cent. damages.