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 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 disSection to the calendar without any application hav-turb the judgment against Robson. ing 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 facts which are not material to the liability of the other upon the cause of action declared upon, 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 execute them. He was a proper party because he was a subsequent purchaser of the land. But his personal liability for the debt and to a deficiency judgment was founded on the extraneous fact that he had assumed payment of the mortgage debt. This fact had no relation whatever to the original liability of Dickinson. It was not a fact material to the cause of action stated against Dickinson, either to obtain a foreclosure or to obtain a deficiency judgment." 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 petitioner virtually concedes that there was no cross-complaint against Hoyt; for he uses the following language in one of the briefs: "The cross-complaint was filed as a precautionary measure, for in advance it was not known how plaintiff would act, and whom plaintiff would seek to hold or release, but, in view 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 by defendant agreed to pay a note and mortgage executed by plaintiff in favor of a third person. The holder of the note sued both Wiltrout and Showers. The former defaulted, and Showers was successful as against the holder of the obligations. Wiltrout paid the judgment, and then sued Showers, who pleaded the former judgment as res judicata. The court said: "As between the two defendants in that ac 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.) § 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 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 single v. 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 [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 plead-of seeking redress is by appeal, as in the case of ings between the plaintiff bank and defendant Hoyt. Let such a writ issue. We concur: HENSHAW, J.; LORIGAN, J. SLOSS, J. I concur in the judgment. It 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 seek a writ of prohibition against the trial of such issues. Code Civ. Proc. § 1103. He is, however, directly interested in preventing another trial of the action against himself as defendant. By the judgment he is made liable for a deficiency in the proceeds of the sale. The property has been sold on foreclosure, and the amount of the deficiency ascertained. In the event of a new trial, a new judgment, and a new sale, the deficiency for which Robson is liable may be greatly in 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 Court, supra; Holtum v. Greif, supra. "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. "There is one further limitation upon the rule prohibiting the court from vacating its order once made, and upon this the respondents place Where an order has been made their reliance. has power, of its own motion or on application 'irregularly and through inadvertence,' the court of a party to set the order aside. Morris v. De Celis, 41 Cal. 331; De Gaze v. Lynch, 42 Cal. 362; Hall v. Polack, 42 Cal. 223; O. F. Sav. tum v. Greif, supra; Whitney v. Superior Court, Bank v. Deuprey, supra, and cases cited; Hol147 Cal. 536, 82 Pac. 37. This rule has been applied in cases where the order was prematurebe used on the motion has not been settled, or ly made, as, for example, where a statement to 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, leaving 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 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 rehearing was granted. If, as they claim, creased. 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. "We think there was here no basis for the court's action in setting aside its order denying TLED a new trial. The notice of intention had been [2. MECHANICS' LIENS 196-PERSONS ENTIserved and filed, the bill of exceptions had been CLASSIFICATION STATUTE — "LAduly settled and was on file, and the motion ap"SUBCONTRACTOR" "ORIGINAL peared regularly on the calendar of the court CONTRACTOR"-"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., § 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- have preference over subcontractors in particited 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 constructappears, 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 contraction, 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 shoulding, "materialmen" being persons who merely be sought under section 473." furnish material to the contractors to be used in the construction of the building, and "subconoriginal contractor to furnish the material and construct for him on the premises some part of the structure which the original contractor has agreed to erect for the owner, although literally a "subcontractor" is one who agrees with another to perform a part or all of the obligation which the second owes by contract to a third I do not stop to discuss the question wheth-tractors" being all persons who agree with the er Whitney v. Superior Court, 147 Cal. 536, 82 Pac. 37, can be successfully distinguished from the case at bar. If there be no valid ground of distinction, I think the decision in the Whitney Case is in conflict with the rules established by a long line of prior decisions, and with fundamental principles governing the finality of judicial determinations. I concur: SHAW, J. ANGELLOTTI, C. J. I concur in the Judgment on the ground that the petitioner would not be affected by a new trial of the issues raised between the plaintiff in the foreclosure suit and Hoyt, and that, this being so, he is not in a position to seek a writ of prohibition against the trial of such issues. He is beneficially interested in prohibiting the trial of other issues, and therefore it is properly ordered that a writ issue to prohibit any such trial. (171 Cal. 570) person. [Ed. Note.-For other cases, see Mechanics' Liens. Cent. Dig. 88 337-341; Dec. Dig. 196. For other definitions, see Words and Phrases, First and Second Series, Laborer; Materialman; Original Contractor; Subcontractor.] 3. APPEAL AND ERROR 934-PRESUMPTIONS FAVORING COURT BELOW. All intendments favor the judgment of the court below. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3777-3782; Dec. Dig. 934.] 4. MECHANICS' LIENS 290-FORECLOSURE— FINDING-SUPPORT BY LIEN CLAIM. In a consolidated action to foreclose mechanics' 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 fur HIHN-HAMMOND LUMBER CO. v. ELSOM nished certain materials used therein, a finding et al. (S. F. 6707.) (Supreme Court of California. Dec. 17, 1915.) 1. MECHANICS' LIENS 196-STATUTE-CON STITUTIONALITY. Code Civ. Proc. § 1194, declaring that laborers and materialmen shall have preference over subcontractors in participation in the amount applicable to mechanics' liens, is not violative of Const. art. 20, § 15, providing that mechanics, materialmen, artisans, and laborers of every class shall have a lien for labor or material furnished, since such provision serves merely to place on an equal footing mechanics, materialmen, artisans, and laborers who personally perform work. [Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 337-341; Dec. Dig. 196.] ranking such parties as materialmen or laborers was sufficiently sustained by the respective claims of lien.. [Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. §§ 591-597; Dec. Dig. ~ 290.] Department 1. Appeal from Superior Court, Santa Cruz County; Lucas F. Smith, Judge. Action to foreclose liens by the Hihn-Hammond Lumber Company against R. W. Elsom and others. From a judgment assigning their respective ranks as lienors, and from an order denying their motion for new trial, Thomas J. Guilfoy and certain others appeal. Judgment and order affirmed. 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 Daniels 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. [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 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 therebalance 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, 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. 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 unconstitutional. This question was consid-fiber stone flooring and furnish the material therefor in the breakfast room and on the asserted against property under the mechansouth and west lower porches. The material ics' lien law into four classes, to wit, laboramounted to $340 and the labor to $300. The ers, materialmen, subcontractors, and orig- The question whether one who claims a lien upon a building is a contractor or materialman has been several times considered by the court. A brief statement of the cases in which the decisions have been rendered will assist in elucidating the principles to be applied. In Hinckley v. Field, etc., Co., 91 Cal. 139, 27 Pac. 594, it was held that one who constructs, before delivery, "a steam plant consisting of boilers, engine, heater, feed pipe," etc., for a cracker factory, delivers them and puts them in place in the factory building, is a materialman, and not a contractor. It was said that the work of putting these materials in place "was only the completion of their contract to deliver such finished machinery." In Roebling Co. v. Humboldt Co., 112 Cal. 290, 44 Pac. 568, the same rule was made concerning a contract to make and set up ready for use in a building an electrical plant "consisting of dynamos, converters, switchboard, lamps, etc., with the necessary wiring and connections," although in order to set them up it als is necessary in many cases to a determiwas necessary to put in the building a foun-nation of the question whether a claimant is dation for the dynamos and to install the a subcontractor or a materialman. Generally wires and lamps. In Bennett v. Davis, 113 speaking, it would be held that one who, unCal. 337, 45 Pac. 684, 54 Am. St. Rep. 354, the der an agreement with the contractor, enters same rule was followed with respect to a upon the premises and there, with material contract to furnish mantels, tiles, and grates furnished by himself, erects a definite part and set them in a building under construc- of the structure composing the building, is a tion. Each tile pertaining to the mantels had subcontractor within the meaning of this secto be set in separately and some bricklaying tion, regardless of the comparative cost of around the mantels was necessary as a part labor and material. The cases above cited of the setting thereof. In Bryson v. McCone, which hold the claimant to be a materialman 121 Cal. 153, 53 Pac. 637, the court held that go upon the theory that the claimant agreed a person contracting to build ice tanks, in- with the owner or the contractor to construct, cluding steel molds, pipes, pumps, and con- outside of the building, or away from the nections, and to set them up in an ice fac- premises, some completed article, machinery, tory, was a materialman, and not an original or apparatus to be thereafter placed in or contractor. In Smith v. Bradbury, 148 Cal. attached to the building by the person who 41, 82 Pac. 367, 113 Am. St. Rep. 189, it was furnished it. The contention was that the held that one who contracted to do the plas- work of attaching it to the building constitering in a building at a stated price yer yard tuted a part of the construction of the buildwas a subcontractor and not a materialman. ing itself, and therefore made the claimant So in La Grill v. Mallard, 90 Cal. 373, 27 either an original contractor with the owner Pac. 294, one who contracted to paper and or a subcontractor with the contractor. The decorate a number of rooms in a dwelling substance of the decisions is that the work house, where the actual work was done by of attaching and placing the thing in the employés, was held to be an original con- building was merely a part of the delivery, tractor. The only rule of general application and that the essence of the agreement was to announced in any of the above-mentioned de- furnish a finished article as material to be cisions was stated in Bennett v. Davis, supra, placed in the building. But in the other 113 Cal. 339, 45 Pac. 685, 54 Am. St. Rep. cases it was clear that the work of the claim354, as follows: ant was that of constructing a part of the building itself with his own materials, under an agreement with the original contractor, and he was held to be a subcontractor. "The main consideration after all is whether the labor bestowed upon the article (in setting) was simple and trifling in comparison to the price." Literally, a "subcontractor" is one who agrees with another to perform a part or all of the obligation which the second party owes by contract to a third party. With respect to the mechanic's lien law in question, however, the word has a much narrower meaning. Under the decision in Smith v. Bradbury, supra, there can be no doubt that the status of Floodberg & McCaffery, who did the lathing and plastering and furnished the material therefor, was that of a subcontractor. The work of Montague & Co. consisted of fur |