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calendar on that date, Hoyt did not answer, ris v. De Celis, 41 Cal. 331, it is said: 'If a mobecause he had agreed with a member of the tion for a new trial is decided by the court befirm of lawyers representing plaintiff that fore it has been submitted, the order denying or

granting the new trial should be set aside as there should be a continuance. This agree improvidently made, if application is made ment was not known to the representative of therefor.' In Stewart v. Taylor, 68 Cal. 5, 8 that firm who appeared in court on Febru- Pac. 605, it is said: "There is no doubt that ary 21, 1913, and he asked that the matter and entered may, where the irregularity is ap

the court in which an irregular order is made be submitted. Thereupon the court denied parent, on suggestion, motion, or ex mero motu, the motion. On February 27, 1913, on the ex set it aside at any time before an appeal is parte application of the plaintiff, the court taken from it.' In Layne on New Trial, vol. set aside the order of February 21, 1913. On order was improvidently or inadvertently made,

2, § 199, the author says: 'Where an appealable April 4, 1913, the court made and entered the aggrieved party may move the court below an order granting a new trial. This was to set it aside, and may appeal from the order based “upon stipulation filed,” which stipu- denying his motion. Thus, where a motion for

a new trial was granted without any submission lation was in the following language:

of the motion, and before the record upon the "It is hereby stipulated that the judgment motion was completed, it was held to be proper heretofore made, rendered and entered in the practice for the aggrieved party to move upon above-entitled action in favor of plaintiff may affidavits to have the order granting the new be vacated and set aside, and that a new trial trial set aside, and the order denying such momay be granted in the above-entitled action. tion was reversed [referring in note to case of Dated April 4, 1913. Tobin & Tobin, Attor- Morris v. De Celis, 41 Cal. 331). The fact that neys for Plaintiff.”

the order was made irregularly takes it out of It is conceded that the petitioner, Robson, the general rule.' See, also, 2 Spelling on New

Trial and Appellate Practice, ş 379. The late had no notice of the application which result-case of Holtum v. Greif, 144 Cal. 521, 78 Pac. ed in the order of February 27, 1913, setting 11, one of the cases relied upon by the petiaside the order denying Hoyt's motion for a tioner, after stating the general rule that an new trial, nor had he notice of the stipulation made and entered cannot be set aside by the trial

order granting or refusing a new trial regularly upon which was based the order of April 4, court, states that, if the orders 'have been en1913.

tered prematurely or by inadvertence, they may Respondents contend that the order set. be set aside on a proper showing. Odd Fellows ting aside the previous order by which Hoyt's and cases cited.

Say. Bank y. Deuprey, 66 Cal. 170, 4 Pac. 1173, motion for a new trial had been denied was

It is suggested that Whitney v. Superior fully within the jurisdiction of the court Court, supra, may be distinguished from the and was made in pursuance of a well-recog, case at bar because, after the motion had nized power. The case of Whitney v. Supe been restored to the calendar, the counsel rior Court, 147 Cal. 536, 82 Pac. 37, fully of the respective parties to the litigation apsupports this view. In that case, as here, the peared and took part in the proceedings in court was dealing with an order made upon the hearing of the motion for a new trial, ex parte application of counsel, setting aside and the plaintiff appealed from the order its former order denying the defendant's mo- granting a new trial. But the court in that tion for a new trial. In that case, as here, case was dealing with a question of juristhe motion for a new trial had been called diction which may not be conferred by acup by plaintiff's counsel in the absence of quiescence. It was clearly held that the counsel for the moving party and in violation court had the power to correct its action with of the stipulation that it should not be reference to defendant's motion. The fact brought to the attention of the court in that that after his objection to the jurisdiction of manner. Upon the theory that the court had a court the litigant proceeds in the usual lost jurisdiction to set aside the order de manner to try the cause or the proceeding nying the motion for a new trial, the success does not preclude him from questioning the ful litigant in the lower court (or his as- power of the court to proceed further. Arsignee) asked for a writ of execution, in royo Ditch & Water Co. v. Superior Court, spite of the fact that after restoration of the 92 Cal. 52, 28 Pac. 54, 27 Am. St. Rep. 91. It defendant's motion to the calendar and for- was not the theory of the Whitney Case that mal argument thereof the prayer of defend the plaintiff in the litigation in the superior ant had been granted, and a new trial had court was estopped to deny the jurisdiction been ordered. This court declined to give a of the court to set aside its own order inadwrit of mandamus to compel the clerk of the vertently made. We see no reason to forsuperior court to issue execution. Speaking sake the doctrine of the Whitney Case, which of the litigation in the superior court, Mr. has been the settled law for more than a Justice Van Dyke, delivering the opinion of decade. That case was carefully considered this court, said:

and the opinion of Mr. Justice Van Dyke re"The motion for new trial in that case was ceived the concurrence of four of the justices by the defendant. He was the moving party: who are still on this bench. It was brought up, as appears, in the absence of the defendant's attorney, without any argument,

It is suggested, however, that the inadvertor opportunity upon the part of the defendant ence which resulted in the entering of the orto be heard, and under the circumstances it was der denying the motion for a new trial was right and proper for the court to do as it did an inadvertence of a party relief from which set aside the order denying the motion for a new trial, and thereupon give the moving party might have been obtained under section 473, tion after proper notice. But the inadvert- It should be noted also that no judgment ence was not that of Hoyt. He had done was rendered in favor of Robson. The true nothing he should not have done. He had position of these two defendants is therefore omitted nothing which he should have done to be found by eliminating all thought of the It was not his fault that some one unauthor- so-called "cross-complaint." The true rule is ized to submit his motion had done so. Pe- well illustrated by the following quotation titioner insists that there was nothing within from Hibernia Bank v. Dickinson, 167 Cal. the knowledge of the court which should have 619, 140 Pac. 265: given notice to the judge of that tribunal “Where a complaint is directed against two that an improper order was being made. persons, and the liability of one involves some Undoubtedly the court may dismiss a motion facts which are not material to the liability of for a new trial when the moving party fails and they answer separately, neither is required

the other upon the cause of action declared upon, to prosecute, and it is also true that such a to answer those allegations which relate solely motion may be brought on for hearing by ei-to the liability of the other. The present case ther party. Section 600, Code Civ. Proc. The

illustrates this proposition. The action was

upon the note and mortgage executed by Dickcourt knew that Hoyt's counsel and Robson's inson alone. His liability was shown by the counsel were not present when the order of allegations of the execution and nonpayment of February 21, 1913, was made. It was the the note and mortgage. Montgomery did not exduty of the court to permit Hoyt to present ecute them. He was a proper party because he

was a subsequent purchaser of the land. But his motion unless he waived his right by his personal liability for the debt and to a defifailing to appear. When, therefore, the court ciency judgment was founded on the extraneous learned that the motion had been called for fact that he had assumed payment of the morthearing under circumstances which deprived to the original liability of Dickinson. It was

gage debt. This fact had no relation whatever Hoyt of his right to a hearing, it became not a fact material to the cause of action stated manifest that the court, and not counsel for against Dickinson, either to obtain a foreclosure the injured party, had acted inadvertently, or to obtain a deficiency judgment." and therefore that of its own volition the The effect of granting a new trial of the iscourt could restore the motion for new trial sues between the bank and Hoyt will not disto the calendar without any application hav- turb the judgment against Robson. Section ing been made under section 473, Code of Civ. 578, Code Civ. Proc.; Fowden v. Pacific Coast il Procedure. The Whitney Case has settled Steamship Co., 149 Cal. 155, 86 Pac, 178; that matter.

Nichols v. Dunphy, 58 Cal. 607. Hoyt was [1, 2] The next question presented is wheth- asking for a new trial as to the issues beer or not the court erred in making the order tween him and plaintiff, and as to such isof April 4, 1913, granting the new trial on sues only. Petitioner is not an aggrieved stipulation of plaintiff and defendant Hoyt, party because in the event of Hoyt's escapwithout giving notice to the petitioner, Rob-ing a judgment all of the liability might son. The position of respondents is this: Rob- fall upon him. The conclusion of the court son and Hoyt were not adversary parties to in the suit for foreclosure of the bank's the action of foreclosure; therefore the judg- mortgage will not be binding in any acment in favor of the plaintiff is not res ju- tion which Robson may bring against Hoyt. dicata as to any issue between Robson and The decree in favor of the bank fixed none Hoyt, and the bank could, accordingly, stipu- of the rights or obligations of the defendants late with Hoyt as it pleased. This conten- among themselves. Robson is not an intertion is correct. The bank sued the defend-ested party in the proceedings for a new trial ants and alleged against each of them sepa of the issues between plaintiff and Hoyt. In rately that each in purchasing the land has Estate of Heydenfeldt, 127 Cal. 459, 59 Pac. assumed the payment of the mortgage. Rob- 839, it was held that persons who were on son and Hoyt filed separate answers.

Rob- the same side in a former proceeding may not son filed a pleading called a "cross-con- invoke the principle of estoppel as between plaint,” but in it he asked no affirmative each other based upon findings in that said relief against Hoyt. The findings contain former proceeding. We need not analyze the the statement, among others, that the case many authorities from other states cited by came to trial upon the cross-complaint of respondents, because the rule is well underRobson against O'Toole and Hillyer. No ref- stood. It is well stated, however, in Wilerence is made to Hoyt. Clearly the superior trout v. Showers, 82 Neb. 779, 118 N. W. 1080. court did not look upon the pleading as a The action was for breach of contract where cross-complaint against Hoyt. Counsel for by defendant agreed to pay a note and mortpetitioner virtually concedes that there was gage executed by plaintiff in favor of a third no cross-complaint against Hoyt; for he uses person. The holder of the note sued both the following language in one of the briefs : Wiltrout and Showers. The former default.

"The cross-complaint was filed as a precau- ed, and Showers was successful as against tionary measure, for in advance it was not the holder of the obligations. Wiltrout paid known how plaintiff would act, and whom plain the judgment, and then sued Showers, who tiff would seek to hold or release, but, in view of the findings of the court, all necessity of the pleaded the former judgment as res judicata. cross-complaint ceased, its existence is of no im- The court said: portance, it affects no right of the parties, and “As between the two defendants in that acdiscussion of it is closed.”

tion no issue was joined. Wiltrout and Showers were not adverse parties. The question, and as we hold, Robson was not an adverse of liability of Showers on the oral contract to as; party to Hoyt, and could not be affected by a sume and pay the notes was not litigated and determined as between Wiltrout and Showers.

new trial granted to Hoyt, there is no ocThe rule of law is well settled that parties to a casion to consider whether the court properjudgment are not bound by it in a subsequent ly set aside, as to Hoyt, the order denying action unless they were adverse parties in the a new trial. But, as this question is di SSoriginal action. 1 Freeman, Judgments (4th Ed.) § 158; 2 Black, Judgments (2d Ed.) 8 ed in Mr. Justice MELVIN'S opinion, I deem 599 ; Pioneer Savings & Loan Co. v. Bartsch, it proper to say that I do not assent to the 51 Minn. 474 (53 N. W. 764, 38 Am. St. Rep: views expressed by him with respect to the 511). The bar of former adjudication can only be raised between those who were adverse par-right of a court to vacate, on an ex parte ties in the former suit, and the judgment in the application, an order granting or denying former suit settles nothing as to the relative a new trial. On this point I adhere to what rights or liability of the codefendants as between I said in the former opinion, from which I themselves unless their conflicting claims were put in issue by cross-petition or adverse an- quote: swers, and were actually litigated and adjudicat- "The petitioner takes the position that, when ed. 23 Cyc. 1279; Whitesell v. Strickler, 167 an application for a new trial has been made in Ind. 602 (78 N. E.'845, 119 Am. St. Rep. 524).” due form and the court has passed upon it, the It follows that Robson's rights are not de-order made is conclusive so far as the court

making it is concerned, and that court cannot pendent upon the determination of the issues afterwards vacate the order and again decide between the plaintiff and Hoyt in the fore- the motion. As a general proposition, this conclosure suit. Of course, the court below will tention is unquestionably sound. Coombs V. confine itself in the new trial to the single Hibberd, 43 Cal. 452;, Odd Fellows Sav. Bank

v. Deuprey, 66 Cal. 168, 4 Pac. 1173; Dorland issue of the alleged assumption by. Hoyt of v. Cunningham, 66 Cal. 484, 6 Pac. 135; Lang the payment of the mortgage.

V. Superior Court, 71 Cal. 491, 12 Pac. 306, [3] But it is alleged in the petition that the 416; Carpenter v. Superior Court, 75 Cal. 596

19 Pac. 174; Holtum v. Greif, 144 Cal. 521, 78 respondent court and the judge thereof are Pac. 11. The 'statute,' says the court in Dorabout to "try said action as to all defend- land v. Cunningham, supra, "authorizes but one ants," and there is no denial of this allega- motion for a new trial, and makes the ruling

thereon final, so far as the superior court is tion in the answer. The petitioner is entitled

concerned.' If error has been committed in to a writ prohibiting respondent from trying granting or denying the motion, the proper mode any issues except those arising on the plead- of seeking redress is by appeal, as in the case of ings between the plaintiff bank and defendant any final order or judgment of the superior

court. The objection that the lower court has Hoyt.

improperly vacated its final order is one that Let such a writ issue.

goes to the jurisdiction of the court. Lang v.

Superior Court, supra; Carpenter v. Superior We concur: HENSHAW, J.; LORIGAN, J. Court, supra; Holtum v. Greif, supra.

"An order granting or denying a motion for a SLOSS, J. I concur in the judgment. It new trial is, of course, like other orders, subject

to be set aside under section 473 of the Code of is clearly shown by the opinion of Mr. Jus- Civil Procedure. But the granting of such retice MELVIN that the petitioner, Robson, lief implies an application to the court by the would not be affected by a new trial of the party against whom the proceeding was taken, issues raised between the plaintiff in the fore upon notice to the adverse party and upon a

proper showing, and it is not claimed that in closure suit and Hoyt. This being so, the this case there was any attempt to invoke or to petitioner is not a party "beneficially inter- exercise the power conferred on the court by ested,” and is not, therefore, in a position to section 473.

“There is one further limitation upon the rule seek a writ of prohibition against the trial prohibiting the court from vacating its order of such issues. Code Civ. Proc. § 1103. He once made, and upon this the respondents place is, however, directly interested in preventing their reliance. Where an order has been made another trial of the action against himself as has power, of its own motion or on application

irregularly and through inadvertence,' the court defendant. By the judgment he is made lia- of a party to set the order aside. Morris v. De ble for a deficiency in the proceeds of the Celis, 41 Cal. 331; De Gaze v. Lynch, 42 Cal. sale. The property has been sold on foreclo- 362; Hall v. Polack, 42 Cal. 223; 0. F. Sav:

Bank v. Deuprey, supra, and cases cited; Holsure, and the amount of the deficiency ascer- tum v. Greif, supra; Whitney v. Superior Court, tained. In the event of a new trial, a new 147 Cal. 536, 82 Pac. 37. This rule has been judgment, and a new sale, the deficiency for applied in cases where the order was prematurewhich Robson is liable may be greatly in- z made, as, for example, where a statement to

be used on the motion has not been settled, or creased.

there had been no submission of the motion. In It follows that, as is held in the forego- such cases the court has acted irregularly and ing opinion, any new trial should be confined inadvertently in undertaking to pass upon a to the issues between the bank and Hoyt, and its improvident action may be set aside.

motion which had not been brought before it, learing the judgment of the bank against This does not mean that an order may be vaRobson standing as a final adjudication. cated because the court concludes, after making This was precisely the 'effect of the writ of it, that it erred in matter of law or fact, or be

cause one of the parties was guilty of some inadprohibition directed on the former submission vertence which resulted to his disadvantage. of the present proceeding. The correctness of The inadvertence which will justify the setting the conclusion is conceded by the respondents aside of an order (except under section 473) is in their brief filed since their petition for the inadvertence of the court, not of a party.

"We think there was here no basis for the rehearing was granted. If, as they claim, court's action in setting, aside its order denying

a new trial. The notice of intention had been 12. MECHANICS' LIENA 196—PERSONS ENTI. served and filed, the bill of exceptions had been TLED - · CLASSIFICATION - STATUTE "LAduly settled and was on file, and the motion ap- BORER"

"SUBCONTRACTOR" “OBIGINAL peared regularly on the calendar of the court CONTRACTOB"-"MATERIALMAN." for argument on February 21, 1913. On that Under the Mechanics' Lien Law (Code Civ. day, there being no appearance for the moving Proc., 8 1194) prior to the amendment of 1911, party, Hoyt, the motion was called and answer- declaring that laborers and materialmen should ed 'ready' by counsel for plaintiff, who submit- bave preference over subcontractors partici. ted the motion, which was thereupon denied. pation in the amount applicable to mechanics" All of this was perfectly regular, and the court liens, a firm which lathed and plastered a house, did not act improvidently or inadvertently. It furnishing the material; a firm which construct appears, however, that there had been an oral ed most of the floors and walls, furnishing the understanding between counsel for Hoyt and a material; a company which erected part of the member of plaintiff's firm of counsel that the walls of bathrooms, furnishing the necessary hearing of the motion should be continued. This tile; a company which put on a mission tile was not known to the attorney who appeared for roof, furnishing the material; a firm which laid plaintiff on February 21st. The misunderstand the flooring in certain rooms, furnishing the ing in this regard would unquestionably have material; and a person who erected the tin supported a claim of inadvertence or surprise work and galvanized iron and copper work, a on the part of Hoyt, but we cannot see that it substantial part of the structure, furnishing the tended to show any inadvertence or irregularity materials-were all "subcontractors" under the on the part of the court. If the disregard of statute, which divides the liens assertable against oral stipulations or misunderstandings between the property into four classes, laborers', matecounsel could authorize the court of its own mo- rialmen's, subcontractors', and original contracțion, or on an ex parte application, to set aside tor's, the "original contractor" being the person judgments or orders as improvident, the finality who agrees with the owner to construct a buildof judicial determinations would be seriously ing on his property, “laborers" being those who impaired. Reasons like these are typical illus- perform labor in the construction of the buildtrations of the grounds upon which relief should ing, “materialmen" being persons who merely be sought under section 473."

furnish material to the contractors to be used I do not stop to discuss the question wheth- tractors" being all persons who agree with the

in the construction of the building, and "subconer Whitney v. Superior Court, 147 Cal. 536, original contractor to furnish the material and 82 Pac. 37, can be successfully distinguished construct for him on the premises some part of from the case at bar. If there be no valid the structure which the original contractor has

agreed to erect for the owner, although literally ground of distinction, I think the decision a "subcontractor" is one who agrees with anin the Whitney Case is in conflict with the other to perform a part or all of the obligation rules established by a long line of prior de- which the second owes by contract to a third cisions, and with fundamental principles gov

person.

[Ed. Note.---For other cases, see Mechanics' erning the finality of judicial determinations. Liens. Cent. Dig. $337–341; Dec. Dig.

196. I concur: SHAW, J.

For other definitions, see Words and Phrases,

First and Second Series, Laborer; Material: ANGELLOTTI, C. J. I concur in the judg.

man; Original Contractor; Subcontractor.] ment on the ground that the petitioner would 3. APPEAL AND ERROR 934—PRESUMPTIONS not be affected by a new trial of the issues

FAVORING COURT BELOW. raised between the plaintiff in the foreclosure

All intendments favor the judgment of the

court below. suit and Hoyt, and that, this being so, he is

(Ed. Note.-For other cases, see Appeal and not in a position to seek a writ of prohibition Error, Cent. Dig. 88 3777-3782 ; Dec. Dig. Om against the trial of such issues. He is bene- 934.] ficially interested in prohibiting the trial of 4. MECHANICS' LIENS C 290—-FORECLOSURE, other issues, and therefore it is properly FINDING-SUPPORT BY LIEN CLAIM. ordered that a writ issue to prohibit ang In a consolidated action to foreclose mesuch trial.

chanics' liens, where the lien claims of certain firms stated that they had respectively performed labor on the building, the claim of one stating that its members had performed certain labor in

the construction of the house, and also had furHIHN-HAMMOND LUMBER CO. v. ELSOM nished certain materials used therein, a finding et al. (S. F. 6707.)

ranking such parties as materialmen or laborers

was sufficiently sustained by the respective (Supreme Court of California. Dec. 17, 1915.) claims of lien. 1, MECHANICS' LIENS Om 196_STATUTE-Con- (Ed. Note. For other cases, see Mechanics' STITUTIONALITY.

Liens, Cent. Dig. $8 591-597; Dec. Dig. Code Civ. Proc. $ 1194, declaring that la- 290.) borers and materialmen shall have preference over subcontractors in participation in the Department 1. Appeal from Superior amount applicable to mechanics' liens, is not Court, Santa Cruz County; Lucas F. Smith, violative of Const. art. 20, § 15, providing that Judge. mechanics, materialmen, artisans, and laborers of every class shall have a lien for labor or

Action to foreclose liens by the Hihn-Ham. material furnished, since such provision serves mond Lumber Company against R. W. Elmerely to place on an equal footing mechanics, som and others. From a judgment assignmaterialmen, artisans, and laborers who person- ing their respective ranks as lienors, and ally perform work. [Ed. Note. For other cases, see Mechanics'

from an order denying their motion for new Liens, Cent. Dig. 88 337-341; Dec. Dig.

trial, Thomas J. Guilfoy and certain others 196.)

appeal. Judgment and order affirmed. For other cases seu samo topic and KEY-NUMBER in all Key-Numbered Digests and ladexes

W. P. Netherton, of Santa Cruz, for appel- ered by this court in Miltimore v. Nofziger, lants. Wyckoff & Gardner, of Watsonville, etc., Co., 150 Cal. 790, 90 Pac. 114. It was for respondent Hihn-Hammond Lumber Co. there declared that the section did not vioH. A. Van C. Torchiana, of San Francisco, late the Constitution by reason of this preferand W. P. Netherton, of Santa Cruz, for de ence, but only so far as it gave laborers a fendant Williamson & Garrett. Charles B. preference over materialmen. Some memYounger, of Santa Cruz, for defendants W. R. bers of the court dissented on the ground that Van Wagner and F. P. Van Wagner, and for the priorities given to laborers over materialrespondents A. D. Houghton, and George H. men was valid. But there was no difference Cardiff. I. F. Chapman, of San Francisco, for of opinion regarding the power of the Legisdefendant White Bros. W. P. Netherton, of lature to prefer these two classes to subconSanta Cruz, for defendants E. B. & A. L Stone tractors. We are not disposed to go over Co., California Artistic Metal & Wire Compa- the ground again to demonstrate the soundny, Simpson & Fisher, F. A. Angell, H. V. An- ness of this decision. Upon the authority gell, and H. W. Truman. Charles M. Cassin, of thereof we hold that the point is not well San Jose, for defendants Henry Willey Co., taken. George G. Byrne, Walter C. Byrne, and Dan- [2, 3] Another proposition advanced in suplels Santa Cruz Transfer Co. C. R. Taylor, port of the appeal is that the findings of the of Los Angeles, for defendant Granite Rock court, with respect to each of the appellants, Co. Rittenbouse & Johnston, of Santa Cruz, that it was a subcontractor and not a matefor defendants L. W. Rickey, George H. Leroy, rialman, are contrary to the evidence. Louis H. Wessendorf, George C. Stafiler, H. The facts relating to each of them are as F. Faneuf, C. H. Heath, Fred A. Bright, and follows: The building erected was a large W. F. Bright. Greg S. McEvers, of San two-story dwelling house. The contract price Francisco, for defendants William Ross and was $27,635.20. R. W. Elsom & Co. were D. MacLeod. A. E. Bolton, of San Francisco, the contractors for the erection of the buildfor defendants William T. Sesnon, B. F. ing. Guilfoy agreed to furnish and set in Porter Estate, J. Harry Blohme, and Clar- place in the building "all tin, galvanized iron, ence B. Ward. W. M. Gardner, of Santa and copper work, including copper sash bars, Cruz, for defendant R. W. Elsom.

galvanized iron caps, copper flashings at back

of wall, two rows of cross bars and a half bar SHAW, J. A number of persons, each at wall line, the full length," all according claiming a mechanic's lien on the same prop- to the plans and specifications of the builderty, began separate actions to foreclose the ing prepared by the architect. The cost of liens. These actions were consolidated for the material for this work amounted to $943.trial and resulted in a joint judgment of 50. The cost of the labor was $247.50. The foreclosure. The building, on account of Waterhouse-Price Company agreed to furnish which the liens accrued, was erected prior the tile for the walls of four bathrooms and to the enactment of the amendment of 1911 a toilet and set the same in the building, the to the mechanic's lien law, in pursuance of setting to be done by experienced workmen a contract which was valid under the prior from San Francisco, all as required by the law. The liens amounted to more than the plans and specifications. The material there balance found due from the owner to the con- for amounted to $227.50 and the labor, $37.50. tractor. This made it necessary to appor- Floodberg & McCaffery agreed to furnish the tion the balance to the respective claimants, material and labor necessary to complete the and to declare the rank of each lien and the lathing and plastering upon the building acorder of its payment out of the fund. Six of cording to specifications attached to the conthe lien claimants, namely, Thomas J. Guil. tract. The material amounted to $1,600 and foy, Waterhouse-Price Company, Floodberg & the labor to $1,363.20. Montague & Co. McCaffery, W. W. Montague & Co., N. Clark agreed to furnish and place in the building & Sons, and Ford & Malott, being dissatisfied 360 square feet of tile for the front porch. with the rank assigned to them by the judg- 250 square feet of tile, and the cove around ment, have appealed from the judgment and the walls with plinth blocks at doors, for from an order denying their motion for a four bathrooms and floors of toilets on the new trial. The court found that each of second floor; also, to furnish the materials these appellants was a subcontractor and, and place in the building four fireplaces for that reason, assigned them a rank sub- made of brick or tile in different rooms in ordinate to that of laborers and materialmen. the building, and to place 75 square feet of The provisions of section 1194 of the Code of tile and wire spaces in the pantry. For all Civil Procedure, as it then existed, declared this the material amounted to $500 and the that laborers and materialmen should have labor to $423. Clark & Sons agreed to depreference over subcontractors in participa- liver and lay in place the tile roof with scaltion in the amount applicable to liens under loped iron at the eaves, in accordance with that law.

the plans and specifications. The material (1) The first point urged by the appellants amounted to $1,350 and the labor $335. Much is that section 1194, in so far as it gives such of the tile had to be cut and fitted on the preference to laborers and materialmen, is premises. Ford & Malott agreed to lay the

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