calendar on that date, Hoyt did not answer, because he had agreed with a member of the firm of lawyers representing plaintiff that there should be a continuance. This agreement was not known to the representative of that firm who appeared in court on February 21, 1913, and he asked that the matter be submitted. Thereupon the court denied the motion. On February 27, 1913, on the ex parte application of the plaintiff, the court set aside the order of February 21, 1913. On April 4, 1913, the court made and entered an order granting a new trial. This was based "upon stipulation filed," which stipulation was in the following language:

"It is hereby stipulated that the judgment heretofore made, rendered and entered in the above-entitled action in favor of plaintiff may be vacated and set aside, and that a new trial may be granted in the above-entitled action. Dated April 4, 1913. Tobin & Tobin, Attorneys for Plaintiff."

It is conceded that the petitioner, Robson, had no notice of the application which resulted in the order of February 27, 1913, setting aside the order denying Hoyt's motion for a new trial, nor had he notice of the stipulation upon which was based the order of April 4,

1913.

Respondents contend that the order setting aside the previous order by which Hoyt's motion for a new trial had been denied was

ris v. De Celis, 41 Cal. 331, it is said: 'If a motion for a new trial is decided by the court before it has been submitted, the order denying or granting the new trial should be set aside as improvidently made, if application is made therefor.' In Stewart v. Taylor, 68 Cal. 5, 8 Pac. 605, it is said: "There is no doubt that and entered may, where the irregularity is apthe court in which an irregular order is made parent, on suggestion, motion, or ex mero motu, set it aside at any time before an appeal is taken from it.' In Hayne on New Trial, vol. 2, § 199, the author says: 'Where an appealable order was improvidently or inadvertently made, the aggrieved party may move the court below to set it aside, and may appeal from the order denying his motion. Thus, where a motion for a new trial was granted without any submission of the motion, and before the record upon the motion was completed, it was held to be proper practice for the aggrieved party to move upon affidavits to have the order granting the new trial set aside, and the order denying such motion was reversed [referring in note to case of Morris v. De Celis, 41 Cal. 331]. The fact that the order was made irregularly takes it out of Trial and Appellate Practice, 379. The late the general rule.' See, also, 2 Spelling on New case of Holtum v. Greif, 144 Cal. 521, 78 Pac. 11, one of the cases relied upon by the petitioner, after stating the general rule that an made and entered cannot be set aside by the trial order granting or refusing a new trial regularly court, states that, if the orders 'have been entered prematurely or by inadvertence, they may be set aside on a proper showing. Odd Fellows' Sav. Bank y. Deuprey, 66 Cal. 170, 4 Pac. 1173, and cases cited.'"

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 spite of the fact that after restoration of the defendant's motion to the calendar and formal argument thereof the prayer of defendant had been granted, and a new trial had been ordered. This court declined to give a writ of mandamus to compel the clerk of the superior court to issue execution. Speaking of the litigation in the superior court, Mr. Justice Van Dyke, delivering the opinion of this court, said:

"The motion for new trial in that case was by the defendant. He was the moving party It was brought up, as appears, in the absence of the defendant's attorney, without any argument, or opportunity upon the part of the defendant to be heard, and under the circumstances it was right and proper for the court to do as it didset aside the order denying the motion for a new trial, and thereupon give the moving party

royo Ditch & Water Co. v. Superior Court, 92 Cal. 52, 28 Pac. 54, 27 Am. St. Rep. 91. It was not the theory of the Whitney Case that the plaintiff in the litigation in the superior court was estopped to deny the jurisdiction of the court to set aside its own order inadvertently made. We see no reason to forsake the doctrine of the Whitney Case, which has been the settled law for more than a decade. That case was carefully considered and the opinion of Mr. Justice Van Dyke received the concurrence of four of the justices who are still on this bench.

It is suggested, however, that the inadvertence which resulted in the entering of the order denying the motion for a new trial was an inadvertence of a party relief from which 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 that an improper order was being made. Undoubtedly the court may dismiss a motion for a new trial when the moving party fails to prosecute, and it is also true that such a motion may be brought on for hearing by either party. Section 600, Code Civ. Proc. The court knew that Hoyt's counsel and Robson's counsel were not present when the order of February 21, 1913, was made. It was the duty of the court to permit Hoyt to present his motion unless he waived his right by failing to appear. When, therefore, the court learned that the motion had been called for hearing under circumstances which deprived Hoyt of his right to a hearing, it became manifest that the court, and not counsel for the injured party, had acted inadvertently, and therefore that of its own volition the court could restore the motion for new trial to the calendar without any application having been made under section 473, Code of Civil Procedure. The Whitney Case has settled that matter.

"Where a complaint is directed against two persons, and the liability of one involves some the other upon the cause of action declared upon, facts which are not material to the liability of and they answer separately, neither is required to answer those allegations which relate solely to the liability of the other. The present case illustrates this proposition. The action was upon the note and mortgage executed by Dickinson alone. His liability was shown by the allegations of the execution and nonpayment of the note and mortgage. Montgomery did not exwas a subsequent purchaser of the land. But ecute them. He was a proper party because he his personal liability for the debt and to a deficiency judgment was founded on the extraneous fact that he had assumed payment of the mortto the original liability of Dickinson. It was gage debt. This fact had no relation whatever not a fact material to the cause of action stated against Dickinson, either to obtain a foreclosure or to obtain a deficiency judgment."

The effect of granting a new trial of the issues between the bank and Hoyt will not disturb the judgment against Robson. Section 578, Code Civ. Proc.; Fowden v. Pacific Coast Steamship Co., 149 Cal. 155, 86 Pac. 178; 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-com- 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 wherecross-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 pleaded the former judgment as res judicata. The court said:

of the findings of the court, all necessity of the cross-complaint ceased, its existence is of no importance, it affects no right of the parties, and discussion of it is closed."

"As between the two defendants in that action no issue was joined. Wiltrout and Show

ed in Mr. Justice MELVIN'S opinion, I deem it proper to say that I do not assent to the views expressed by him with respect to the right of a court to vacate, on an ex parte application, an order granting or denying a new trial. On this point I adhere to what I said in the former opinion, from which I quote:

ers 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 subsequently set aside, as to Hoyt, the order denying action unless they were adverse parties in the a new trial. But, as this question is discussoriginal action. 1 Freeman, Judgments (4th Ed.) $ 158; 2 Black, Judgments (2d Ed.) § 599; Pioneer Savings & Loan Co. v. Bartsch, 51 Minn. 474 [53 N. W. 764, 38 Am. St. Rep. 511]. The bar of former adjudication can only be raised between those who were adverse parties in the former suit, and the judgment in the former suit settles nothing as to the relative rights or liability of the codefendants as between themselves unless their conflicting claims were put in issue by cross-petition or adverse answers, 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 singlev. Deuprey, 66 Cal. 168, 4 Pac. 1173; Dorland Hibberd, 43 Cal. 452; Odd Fellows' Sav. Bank 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, 416; Carpenter v. Superior Court, 75 Cal. 596, 19 Pac. 174; Holtum v. Greif, 144 Cal. 521, 78 Pac. 11. The 'statute,' says the court in Dorland v. Cunningham, supra, 'authorizes but one motion for a new trial, and makes the ruling thereon final, so far as the superior court is concerned.' If error has been committed in granting or denying the motion, the proper mode of seeking redress is by appeal, as in the case of any final order or judgment of the superior court. The objection that the lower court has improperly vacated its final order is one that goes to the jurisdiction of the court. Lang v. Superior Court, supra; Carpenter v. Superior

[3] But it is alleged in the petition that the respondent court and the judge thereof are about to "try said action as to all defendants," and there is no denial of this allegation in the answer. The petitioner is entitled to a writ prohibiting respondent from trying any issues except those arising on the pleadings between the plaintiff bank and defendant Hoyt.

Let such a writ issue.

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

It

"An order granting or denying a motion for a new trial is, of course, like other orders, subject to be set aside under section 473 of the Code of Civil Procedure. But the granting of such relief implies an application to the court by the party against whom the proceeding was taken, upon notice to the adverse party and upon a proper showing, and it is not claimed that in this case there was any attempt to invoke or to exercise the power conferred on the court by section 473.

SLOSS, J. I concur in the judgment. is clearly shown by the opinion of Mr. Justice MELVIN that the petitioner, Robson, would not be affected by a new trial of the issues raised between the plaintiff in the foreclosure suit and Hoyt. This being so, the petitioner is not a party "beneficially interested," and is not, therefore, in a position to "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; O. 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- be used on the motion has not been settled, or ly made, as, for example, where a statement to creased. there had been no submission of the motion. In such cases the court has acted irregularly and motion which had not been brought before it, inadvertently in undertaking to pass upon a and its improvident action may be set aside. This does not mean that an order may be vacated because the court concludes, after making it, that it erred in matter of law or fact, or because one of the parties was guilty of some inadvertence which resulted to his disadvantage. The inadvertence which will justify the setting aside of an order (except under section 473) is the inadvertence of the court, not of a party.

It follows that, as is held in the foregoing opinion, any new trial should be confined to the issues between the bank and Hoyt, leaving the judgment of the bank against Robson standing as a final adjudication. This was precisely the effect of the writ of prohibition directed on the former submission of the present proceeding. The correctness of the conclusion is conceded by the respondents in their brief filed since their petition for

"We think there was here no basis for the

HIHN-HAMMOND LUMBER CO. v. ELSOM nished certain materials used therein, a finding

[Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. §§ 337-341; Dec. Dig. trial, Thomas J. Guilfoy and certain others 196.] appeal. Judgment and order affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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 San Jose, for defendants Henry Willey Co., George G. Byrne, Walter C. Byrne, and Danlels Santa Cruz Transfer Co. C. R. Taylor, of Los Angeles, for defendant Granite Rock Co. Rittenhouse & Johnston, of Santa Cruz, for defendants L. W. Rickey, George H. Leroy, Louis H. Wessendorf, George C. Staffler, H. F. Faneuf, C. H. Heath, Fred A. Bright, and W. F. Bright. Greg S. McEvers, of San Francisco, for defendants William Ross and D. MacLeod. A. E. Bolton, of San Francisco, for defendants William T. Sesnon, B. F. Porter Estate, J. Harry Blohme, and Clarence B. Ward. W. M. Gardner, of Santa Cruz, for defendant R. W. Elsom.

thereof we hold that the point is not well taken.

[2, 3] Another proposition advanced in support of the appeal is that the findings of the court, with respect to each of the appellants, that it was a subcontractor and not a materialman, are contrary to the evidence.

The facts relating to each of them are as follows: The building erected was a large two-story dwelling house. The contract price was $27,635.20. R. W. Elsom & Co. were the contractors for the erection of the building. Guilfoy agreed to furnish and set in place in the building "all tin, galvanized iron, and copper work, including copper sash bars, 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 to the mechanic's lien law, in pursuance of a contract which was valid under the prior law. The liens amounted to more than the balance found due from the owner to the contractor. This made it necessary to apportion the balance to the respective claimants, and to declare the rank of each lien and the order of its payment out of the fund. Six of the lien claimants, namely, Thomas J. Guilfoy, Waterhouse-Price Company, Floodberg & McCaffery, W. W. Montague & Co., N. Clark & Sons, and Ford & Malott, being dissatisfied with the rank assigned to them by the judgment, have appealed from the judgment and from an order denying their motion for a new trial. The court found that each of these appellants was a subcontractor and, for that reason, assigned them a rank subordinate to that of laborers and materialmen. The provisions of section 1194 of the Code of Civil Procedure, as it then existed, declared that laborers and materialmen should have preference over subcontractors in participation in the amount applicable to liens under that law.

a toilet and set the same in the building, the setting to be done by experienced workmen from San Francisco, all as required by the plans and specifications. The material therefor amounted to $227.50 and the labor, $37.50. Floodberg & McCaffery agreed to furnish the material and labor necessary to complete the lathing and plastering upon the building according to specifications attached to the contract. The material amounted to $1,600 and the labor to $1,363.20. Montague & Co. agreed to furnish and place in the building 360 square feet of tile for the front porch, 250 square feet of tile, and the cove around the walls with plinth blocks at doors, for four bathrooms and floors of toilets on the second floor; also, to furnish the materials and place in the building four fireplaces made of brick or tile in different rooms in the building, and to place 75 square feet of tile and wire spaces in the pantry. For all this the material amounted to $500 and the labor to $423. Clark & Sons agreed to deliver and lay in place the tile roof with scalloped iron at the eaves, in accordance with 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