and payable to him. It was further alleged in said complaint in intervention that a withhold notice was, on or about the eleventh day of September, 1920, filed by the intervener with said auditor, and that thereafter in September, 1920, a second withhold notice was filed with said. auditor, and that on or about the ninth day of October, 1920, a third withhold notice was filed with said auditor. A copy of the last-mentioned withhold notice was attached to the complaint in intervention.

The answer of the intervener to the complaint of plaintiff denied that the contract between plaintiff and the county of Tehama for the construction of the bridge in question was entered into on the sixth day of July, 1920, and alleged that it was entered into on the twenty-first day of May, 1920.

It should be noted that the complaint in intervention makes no mention of the said contracts of June 25, 1920, and July 6, 1920.

The withhold notice filed on the ninth day of October, 1920, and which, as just stated, was the third filed with the auditor, referred to and was predicated upon the contract of the twenty-first day of May, 1920, and no other, and it sets forth the furnishing of materials consisting of engineering designs to be used in the construction of the bridge to be erected pursuant to the contract of May 21, 1920, and also affirms that the value of the material, labor, and services furnished and performed by the intervener was $6,997.

Plaintiff's answer to the complaint in intervention denies all the allegations of the latter, with the exception that the filing of the alleged withhold notices is admitted, but it is affirmed that each of them was in certain particulars insufficient to constitute a compliance with the provisions of section 1184 of the Code of Civil Procedure of this state, or any other provision of law.

The auditor, in his answer to the plaintiff's complaint, also denied that the contract for the construction of the bridge was entered into on the sixth day of July, 1920, but alleged, as did the complaint in intervention, that the plaintiff and the county of Tehama entered into the contract for the building of the bridge on May 21, 1920.

Upon the hearing the court found that the contract under which the bridge was built was the one of July 6, 1920, and there was ample evidence to sustain such finding. The judgment was that the plaintiff was entitled to have and receive said sum of $15,375, and that a peremptory writ issue, directed to said auditor, to draw and deliver a warrant in favor of plaintiff for such amount. From this judgment both the auditor and intervener appealed, but the appeal of the former, upon his motion, was heretofore dismissed, leaving the intervener the sole appellant. (Cotton-Macauley Co. v. DeShields et al., 52 Cal. App. 469 [198 Pac. 1026].)

There was no finding nor evidence that such bridge was constructed in accordance with the "Luten Design," plans or specifications, or that the intervener, Daniel B. Luten, furnished any materials to be used in, or performed any labor in connection with, the construction thereof. Upon the contrary, the proof was that the bridge was constructed under what were termed the Leonard plans and specifications, which embodied a method of construction other than that called for by and which counsel for intervener declared constituted a change from the Luten plans.

[1] From what precedes, it is obvious that the intervener had no claim upon which he could base the statutory notice to withhold. Under the law in force at the time the contract we are considering was executed, and in which respect it remains unchanged, in order to resort to and enlist the aid of a notice to withhold sufficient funds to meet the demand of the claimant, and which notice is in effect an equitable garnishment, it was essential that the party filing the same should have performed labor for, or furnished materials, or both, or agreed to do so, to the contractor or other person acting by the authority of the owner, in connection with the work done or to be done under the contract by the terms of which the funds sought to be impounded are or will become due and payable. (Code Civ. Proc., secs. 1183, 1184.)

[2] The fact that the board of supervisors of the county of Tehama on the twenty-first day of May, 1920, may have entered into a contract with plaintiff to build a bridge of the "Luten Design" over Deer Creek, and which bridge was never constructed as so designed, would not give Luten

the right, through the medium of the statutory notice to withhold, to garnishee funds due or to become due under an agreement between the same parties for the construction of a bridge at the same point, but of another design, prepared by a different engineer, and which did not embrace any of the inventions and devices of Luten.

The foregoing views render it unnecessary to consider at length the further contentions of intervener. Whether or not the contract of July 6, 1920, was made by the board of supervisors without authority, and is therefore void, is not a problem in the case. Assuming, but not deciding, that intervener, who was not a party thereto, can attack its validity, the fact still remains that, even though the contention be sustained, intervener performed no labor for and furnished no materials to the plaintiff in connection with the bridge as finally constructed, which, as we have seen, is indispensable to his right to a notice to withhold. The same is true of the contention that the surviving partner was without authority to enter into the contract of July 6, 1920, which the intervener declares was a "new contract," and under which the court found the bridge was constructed, and which finding, as we have said, is supported by the evidence, and hence is conclusive here. While we cannot agree with this contention, its determination one way or the other is immaterial, for the contract of May 21, 1920, upon which intervener predicates his claim, was never performed such is the implied finding of the court, and such is the proof. It is true that counsel for intervener affirm "that as a matter of fact the work was actually done" under the last-mentioned contract, but such was not the finding of the trial court.

Finally, counsel upon both sides devote a considerable! portion of their respective briefs to the discussion of the question as to whether, under the provisions of the code already alluded to, or any provision of law, the intervener was entitled to a withhold or stop notice, but in view of the conclusion reached by us, it is needless to determine that question.

Judgment affirmed.

Lennon, J., Sloane, J., Waste, J., Lawlor, J., and Shaw, C. J., concurred.

WILBUR, J., Concurring.-I concur.

In view of the fact that the trial judge felt that the case of Slayden v. O'Dea, 182 Cal. 500 [189 Pac. 1066], was controlling in this case and that this view was shared by the district court of appeal, first district, I think it is proper to say that that case turned entirely upon the construction to be placed upon the term "wagon road," and it was held that the term "wagon road," in view of the history of the section, meant a private wagon road. The statute, however, also gives a lien for work done upon a bridge, and the contract here was for the construction of a bridge which would, of course, include either a public or a private bridge. In case of a public bridge there could be no lien, but, as we have held, in such cases there could be an effective stop notice.

Rehearing denied.

All the Justices concurred.

[L. A. No. 6980. In Bank.-February 3, 1922.]

In the Matter of the Estate of MARION M. WITHENBURY, Deceased. pellant.

CLARA LELAND PABODIE, Ap

[1] ESTATES OF DECEASED PERSONS-WILL CONTEST-DELAY IN ISsuING CITATION-RELIEF FROM-JURISDICTION.-The issuance of the citation under a petition for revocation of probate of the will of a deceased person is not jurisdictional, and the trial court has power to relieve the petitioner from failure to issue such citation within a year if, in its opinion, such failure was the result of excusable neglect.

[2] ID.-EXCUSABLE NEGLECT.-Where an attorney petitioning for revocation of probate of the will of a deceased person, while busily engaged in the trial and briefing of two important cases and very much engrossed in those matters, as well as a large number of other matters pertaining to the business of his office, including the will contest, placed the petition in the hands of a clerk employed by him, with instructions to file and serve the same, and said clerk, who was duly admitted to practice as an

ކ

attorney and had always been efficient and conscientious in his duties, but who was unfamiliar with the provisions of section 1328 of the Code of Civil Procedure and believed that the only service of the petition necessary was by delivery to the party or attorney for the executor, served a copy of the petition upon the executor and filed the same, the neglect in not having a citation issued within one year after probate was excusable and the petitioner entitled to relief therefrom, where the employer, who believed that the matter had been properly attended to, upon discovering the default after the expiration of the one year period, procured and served the citation within six days after the expiration of such period.

APPEAL from an order of the Superior Court of Los Angeles County dismissing a petition for revocation of probate of a will. James C. Rives, Judge. Reversed.

Anderson & Anderson, Edward F. Wehrle and W. H. Anderson for Appellant.

Jefferson P. Chandler for Respondent.

WILBUR, J.-On November 17, 1920, appellant served and filed a petition for the revocation of the probate of the will of the deceased, probated November 24, 1919, alleging that the will was procured by fraud and undue influence, Citation thereon was issued November 30, 1920. The executor moved to dismiss the petition for revocation on the ground that no citation had been issued within one year after the probate of the will as required by section 1328 of the Code of Civil Procedure. The appellant upon affidavits moved for relief from such failure on the ground of excusable neglect, and the court, after finding the facts as hereinafter stated, denied appellant relief and ordered the dismissal of the petition for revocation. The petitioner appeals from this order.

The question for our consideration is this: Was the delay of the petitioner for more than five days after the expiration of the year from the time of the probate of the will so far justified by the circumstances found by the trial court as to require a reversal of its order denying petitioner the relief sought and dismissing the petition? [1] The issuance of the citation is not jurisdictional, and the trial court had the power to relieve the petitioner from the fail