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Divorce action by Ross II. Van Horn against Marion V. Van Horn. Defendant appeals from a judgment awarding plaintiff an interlocutory decree of divorce, and from an order denying a motion for new trial. Affirmed.

Alfred B. Weiler, for appellant. Johnson & Shaw, for respondent.

legal discretion of the trial court. The court may modify its decree as to their custody at any time. Section 138, Civ. Cade; Crater v. Crater, 135 Cal. 635, 67 Pac. 1019. "Its jurisdiction does not depend upon specific allegations as to the fitness of the respective parties, or their ability or willingness to care for their offspring, nor upon a specific prayer for the custody.” Ex parte Gordon, 95 Cal. 377, 30 Pac. 561. In matters of this kind much must be left to the sound discretion of the court in accepting or rejecting evidence. We can readily conceive of instances in which the excluded evidence might very properly be admitted. In this case, however, the minor being a boy now about 15 years of age, and the appellant having been adjudged guilty of adultery, we think the contention has but little merit.

Appellant complains that the objections to the excluded evidence just considered, and to at least one other question, were too general, and not directed to defects now urged. The ruling of the trial court in rejecting evidence will be upheld on appeal, if correct, whether the ground upon which it is based was stated in the objection or not. Davey v. Southern Pac. Co., 116 Cal. 325, 48 Pac. 117.

This disposes of all the grounds urged for reversal which merit consideration.

No error appearing in the record, the judgment and order are affirmed.

We concur: COOPER, P. J.; HALL, J.

KERRIGAN, J. Appeal by defendant from a judgment, awarding plaintiff an interlocutory decree of divorce, and from an order denying defendant's motion for a new trial.

The complaint alleges that the appellant committed adultery with one Adolph Knopf, and prays for a judgment of divorce, and that the whole of the community property and the custody of the two minor children be awarded to the respondent. During the pendency of the action one of the children reached majority. The action was tried, and an interlocutory decree was entered awarding respondent a divorce and the custody of the remaining minor child. The question of the property rights was reserved.

Among the assigned errors was the action of the trial court in refusing to permit appellant to introduce evidence of the good character of herself and the co-respondent. The general rule is that in civil actions eridence of character of neither party thereto is admissible. 5 Am. & Eng. Ency. of Law, pp. 861, 802; 1 Wigmore on Ev. $ 64. There are exceptions to this rule. In actions for slander and libel, character is necessarily put in issue, as injury to character is the gist of such actions. 5 Am. & Eng. Ency. of Law, p. 865. There are a few other exceptions, and by some authorities different conclusions are reached as to whether the charge of adultery in an action for divorce is one of the exceptions. In this state, however, the question is controlled by section 2053, Code Civ. Proc., which reads: "Evidence of the good character of a party is not admissible in a civil action, nor of a witness in any action, until the character of such party or witness has been impeached, or unless the issue involves his character.” By the allegation of adultery appellant's character was not put in issue, and evidence concerning it, under this section, was properly excluded. The co-respondent was not a party to the action, nor had he, as a witness, been impeached (section 2051, Code Civ. Proc.), so evidence of the excellence of his character was properly rejected (section 2053, Code Civ. Proc.; People v. Bush, 65 Cal. 134, 3 Pac. 590, concurring opinion).

In this connection it is further contended by appellant that the custody of the minor children was involved, and for this reason testimony of the character of the appellant was admissible. The disposition of minors,

. in a proceeding of this kind, is always one within the control, and subject to the sound

(5 Cal. App. 736) MONTIJO et al. v. ROBERT SHERER &

CO. et al. (Civ. 359.) ) (Court of Appeal, Second District, California. June 18, 1907. Rehearing Denied by Su

preme Court August 17, 1907.) 1. JUDGMENT - VACATION - NEGLIGENCE OF PARTY.

On a motion by one of the defendants in an action for forcible entry to set aside a default judgment against him, on the ground of excusable neglect, etc., it appeared that the moring party was a laborer in the employ of his codefendants, and as such entered on the premises, and that on being served with process he called his employer's attention to the matter and was informed that a defense would be made for him. Held, that he had a right to rely upon such statement.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 30, Judgment, $ 280.] 2. SAJE-DISCRETION OF COURT.

On a motion to set aside a default judgment on the ground of excusable neglect, etc., the discretion of the court should be exercised liberally with a view to a trial on the merits.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, 265.) 3. SAME-AFFIDAVITS.

On a motion to set aside a default judg. ment on the ground of excusable neglect, etc., a verified answer denying all the material allegations of the complaint is sufficient in lieu of an affidavit of merits.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, $ 315.]

Appeal from Superior. Court, Los Angeles least, that Ryan so believed. That Ryan was County; Walter Bordwell, Judge.

a laborer in the employ of his codefendants Action by Manuel Montijo and others and it was in such employment he went upon against Robert Sherer and others. Appeal said lands. That upon being served he called by plaintiffs from an order setting aside a the attention of his employers to the service default and granting leave to answer to de of summons upon him and was told by them fendant, Mark Ryan. Affirmed.

that he need not bother about the matter, as Hugh J. Crawford and Wm. Crawford, for

the suit would be taken care of by the Los

Angeles Interurban Railway Company. That appellants. Bicknell, Gibson, Trask, Dunn

he relied upon such statement and filed no & Crutcher (Edward E. Bacon, of counsel), for respondent.

answer. Under the circumstances, he had a right to rely upon the statement that the

corporation whom he believed to be the real TAGGART, J. Appeal from an order

party in interest would protect him. The setting aside default and granting leave to

showing by the affidavit of Attorney Crutchanswer.

er as to the reasons why he did not answer Defendant Ryan was an employé of Robert

for defendant Ryan before his appearance to Sherer & Co. and was joined with the mem

make the motion we do not think material. bers of that copartnership in an action for

The “records and files" upon which the damages for forcible entry upon premises,

motion was also based are not before us, but of which plaintiff's allege themselves to have

it does appear from the affidavit of Albert been the owners and in the actual possession,

Crutcher that an answer had been filed on at the time of such entry, to wit, on Feb

behalf of the defendants Sherer & Co. This ruary 2, 1906, and to and until February 14,

was a circumstance that the court should 1906, and at divers times between said dates.

have, and no doubt did, consider in the exRyan was served with summons February

ercise of its discretion in the matter. That 20, 1906, and the members of Sherer & Co.

there were other pleadings before the court served on February 21st and 23d, respective

raising the same issues of fact as those ly. Sherer & Co. answered, but Ryan failed

which the defendant in default asked to have to do so, and on March 5, 1906, the default

tried in his behalf might well and properly of Ryan for not answering was regularly en

have influenced the court in case of doubt. tered, and thereafter, on March 13, 1906; It was authorized to examine them for the judgment was taken against him as prayed

purpose of determining the motion. Lakefor in the complaint, to wit, for the sum of

shore Co.' v. Modoc Co., 108 Cal. 263, 41 $1,500 (the same to be trebled) and for

Pac. 472. The discretion of the court in vacosts. On March, 17, 1906, he served notice

cating the default and setting aside the judgon plaintiffs' attorney of his intention to

ment thereon appears to have been liberally move the court to set aside the said default

exercised with a view to the trial of the case and to permit him to answer the complaint

on its merits. This was in accordance with filed in the action. The motion was noticed

the universal rule. Merchants' Co. v. Los to be made on the records and files in said

Angeles Co., 128 Cal. 621, 61 Pac. 277. action and the affidavits of himself and at

Neither of the affidavits filed contains a torney and his verified answer to the com

showing that alone would be sufficient as an plaint, a copy of which was served with the

affidavit of merits, but the verified answer notice. The grounds specified were that

denies every material allegation of the com"said defendant failed to answer in time

plaint. This has been held sufficient too through inadvertence, mistake, and excusable

often by the Supreme Court to be considered neglect."

an open question. Fulweiler y. Wining Co., Appellants claim the order granting the

83 Cal. 129, 23 Pac. 65; Merchants' Co. v. motion was error for two reasons: (1) The

Los Angeles Co., supra; Velde v. Reynolds, grounds of the motion are stated conjunc

129 Cal. 314, 61 Pac. 932. tively in the notice and both affidavits filed,

Order appealed from affirmed. and the showing made fails to support the conjoined reasons of inadvertence, mistake,

We concur: ALLEN, P. J.; SHAW, J. and excusable neglect; (2) the affidavit of merits is insufficient. che affidavits are not to be construed with

(5 Cal. App. 754) the strictness applied to a pleading in mat STIMSON MILL CO. v. NOLAN et al. BERG ters of form, and if they show facts to jus et al. v. SAME. TILDEN Y. SAME. FRICKtify the action of the court on the ground of FLEMING HARDWARE CO. et al. v. inadvertence, mistake, or excusable neglect, SAJE. (Civ. 3.35.) it will be sufficient. By the afiidavits and

(Court of Appeal, Second District, California. verified answer the following facts are made June 19, 1907. Rehearing Denied by Suto appear: That the Los Angeles Interurban

preme Court Aug. 17, 1907.) Railway Company was the owner and in the 1. MECHANICS' LIENS--CONTRACT FOR Inpeaceable possession of the premises describ PROVEMENT-STATUTORY PROVISIONS — TIME

OF FILING. ed in plaintiffs' complaint at the time of the Under Code Civ. Proc. $ 1183. providing alleged entry thereon by defendants, or, at that, when the price for a building exceeds

$1,000, the contract shall be in writing sub land and for mechanics' liens thereon, are not scribed by the parties thereto and shall, before unconstitutional as limiting the right to conthe work is commenced, be filed with the county tract, since Const. art. 20, § 15, provides for a recorder, otherwise it shall be void as to the lien which without the statutes would be for parties, and the labor and materials furnished the full value of the labor or material furnishby the persons other than the contractor shall ed, and the statutes merely curtail the liability be deemed to liave been done or furnisher at the under certain conditions. personal instance of the owner, and they shall

7. SAME-DưE PROCESS OF LAW. have a lien for the value thereof, where work was commenced on a building under an oral contracts for the construction of improvements

Code Civ. Proc. 88 1183, 1181, relating to agreement for an amount exceeding $1.000, and subsequently a written contract embodying the

and mechanics' liens thereon, do not take propterms of the oral agreement was signed and fil

erty without due process of law, since the owned, the contract was void, and the laborers and

er makes his contract with the Constitution and inaterialmen were entitled to a lien on the prop

laws in mind, and they form part of his conerty for the full value of the labor or material

tract, and they do not increase the contract furnished.

price, since their effect is to protect the con(Ed. Xote.--For cases in point. see Cent. Dig.

tractor when he honestly discharges his obliga

tions. vol. 31, Mechanics' Liens, g 289.)

[Ed. Xote.-For cases in point, see Cent. Dig. 2. SAME-TIME OF FINAL PAYMENT.

vol. 10, Constitutional Law, $ 940.] Code Civ. Proc. $ 1181, provides that, where the contract price for a building exceeds $1,000,

Appeal from Superior Court, Los Angeles it shall in the contract be made payable in installments, ete., provided that at least 25 per

County; Curtis D. Wilbur, Judge. cent. of the price shall be made payable at least Actions by the Stimson Mill Company, a 35 days after the completion of the contract ; corporation, against M. J. Nolan and others; that as to all liens except that of the contractor the contract price shall not be diminished by

by C. G. Berg and others against M. J. Yoany prior or subsequent indebtedness, offset, or lan and others, in which N. S. Wakefield counterclaim, in favor of the reputed owner and L. X. Wise were cross-complainants; by against the contractor and that, if the contract does not conform substantially to the pro

J. F. Tilden against M. J. Nolan and others, visions of the section, labor and materials fur and by the Frick-Fleming Hardware Comnished by persons other than the contractor pany and others against M. J. Nolan and shall be deemed to have been done or furnished

others. at the request of the person letting the contract,

From an adverse judgment, the and they shall have a lien for the full value Stimson Mill Company, L. N. Wise, J. F. thereof. A building contract exceeding $1,000 Tilden, and the Frick-Fleming lardware provided that the final payment should be made when the building was completed and receipts

Company appeal. Reversed and remanded. in full were shown to the owner. but did not Borden & Carhart, W. C. Batcheller, A. provide for payment within 35 days from completion of the building. The contractor aban

L. & J. E. Stephens, and Charles L. Batcheldoned the contract, and nearly all the unpaid

ler, for appellants. F. B. Gutbrie, E. A. balance was consumed in completing the build Meserre, Frank James, W. C. Petchner, and ing. Hold, that the laborers and materialmen were entitled to a lien for the full value of their

Scarborough & Bowen, for respondents. services of material furnished. 3. SAME-EFFECT-PRIORITIES,

ALLEN, P. J. Appeal from a judgment of The constitutional provision, which gives to mechanics, materialmen, and laborers of every

the superior court of Los Angeles county. Class a lien upon the property upon which they It appears from the record that on or behave bestowel labor or furnished material,

fore June 22, 1903, defendant Yolan, thie places all such parties in the same class, and the Legislature cannot give preference to one

owner of the premises involved, and one performing labor.

Culver, a contractor, had concluded oral ne[Ed. Note.-For cases in point, see Cent. Dig. gotiations through which Culver had agreed vol. 31, Mechanics' Liens, $$ 330-339.]

to furnish materials and construct a house on 4. SAME-ENFORCEMENT-ATTOP.XEY'S FEE. said premises for the consideration of $3,100. In an action to enforce a mechanic's lien,

That on said last-named date Culver, with an allowance of attorneys' fees to a claimant is erroneous.

Xolan's consent, commenced the work of such 5. CoxSTITUTIONAL LAW – DUE PROCESS OF

construction, and certain lien claimants delivLAW— MECHANICS' LIENS.

ered upon the premises the brick necessary If Const, art. 20. § 15, providing for a me for the foundation, while others delivererl upchanic's lien, were subordinate to ariicle 1, § 1, thereof, in relation to the inalienable right to

on the premises the lumber necessary for the acquire, possess, and protect property, and to

construction. Thereafter, on June 26th, Yolan article 1, § 13, thereof, prohibiting depriving and Culver entered into a written contract for owners of property without due process of law,

the construction of a house, which was in all it would not affect the validity of Code Civ. Proc. $$ 1183, 1181, relating to contracts for

respects the same as the oral agreement. In the construction of buildings and to mechanics' this written contract the construction price liens, since the lien is primarily upon the build of $3.100 was made payable in four equal ining which the laborers or materialmen have contributed to, and the owner having made the

stallments, of which three were to be paid building a par: of the realty, the whole becomes during the construction, and the last “when charged with the lien.

the house was completed and receipts in II. Vote.For cases in point. see Cent. Dig. full shown to the owner.” After this convol. 10. Constitutional Law; $940.)

tract had been executed, and such contract 6. SAME-RIGUIT TO CONTRACT. Code Cir. Pror. SS 1183, 118-1, providing

and an accompanying bond filed in the rethe terms of valid contracts for more than

corder's office, other lien claimants furnished $1,000 for the construction of improvements on i materials and performed labor upon said

building The aggregate value of all ma due and payable, shall, before the work is terials and labor furnished by all claimants, commenced, be filed in the office of the counon October 26, 1903, amounted to $1,770. On ty recorder of the county or city and county, this date the contractor abandoned the work. where the property is situated; The court finds that on and before the aban otherwise they shall be wholly yoid, and no donment the value of the work and materials recovery shall be bad thereon by either party furnished under the contract upon the house, thereto; and in such case, the labor done and estimated as nearly as may be by the stand materials furnished by all persons aforeard of the whole contract price here involved. said, except the contractor, shall be deemed amounted to $2,520, and that the contractor to have been done and furnished at the perhad been previously paid by the owner $2,323, sonal instance of the owner, and they shall leaving a balance of $195 due, which the have a lien for the value thereof." No surcourt found was the whole amount due from reptitious commencement of work is involvthe owner to the contractor. The whole ed. Hence we have a deliberate violation of amount of expenditure required upon the part of the owner to complete the building

which is declared by the statute. To hold is not made to appear.

It appears that there such a contract valid, under the circumstanwas unpaid to the lien claimants on the 26th ces of this case, is to ignore the plain proof October, 1903, on account of the materials visions of a statute. The contract being furnished and labor performed by them, the

void, those entitled to liens under the Conaggregate sum of $1,062.94. It further ap stitution are unrestricted in their rights to pears that the building was completed De

have a lien for the full value of materials cember 1, 1903, and that thereafter and with and labor furnished. Laidlaw v. Marye, 133 in lue tine all of these claimants (luly per Cal. 174, 65 Pac. 391. fected their liens. Various suits were insti Again, section 1181, Code Civ. Proc., protuted by these claimants upon their liens, vides: "No part of the contract price shall, all of which were consolidated and heard in by the terms of any such contract, be made this action. Upon the trial, the court found payable, nor shall the same or any part the contract between Nolan and Culver a Tiereof be paid in advance of the commencevalid one as to all parties furnishing mate ment of the work, but the contract price shall, rials or performing labor after its filing, but by the terms of the contract, he made payable inoperative as to those who furnished labor in installments at specified times after the and materials before such filing; and, fur Commencement of the work, or on the complether, that the omission to reserve 25 per

tion of specified portions of the work, or on cent, of the contract price 35 days after com the completion of the whole work; provided, pletion did not invalidate the contract. Judg

that at least twenty-five per cent. of the ment was accordingly rendered in favor of whole contract price shall be made payable the lien claimants who furnished labor and at least thirty-five days after the final commaterials after the filing of the contract pletion of the contract. * * * In case to the full extent of their claims; that such contracts and alterations thereof do not Wakefield, one of the claimants. being a conform substantially to the provisions of laborer, and his claim being for labor, had this section, the labor done and materials preference and priority over the other claim furnished by all persons except the ants who furnished materials after the filing tractor shall be deemed to have been done of the contract, and that claim, amounting to and furnished at the personal instance and $144.25, with costs for filing the lien and at request of the person who contracted with torney's fees, was adjudged a preferred claim the contractor, and they shall have a lien and the full amount thereof ordered paid, for the value thereof." In this contract so which payment exhausted all the money so executed and filed after the commencement found in the hands of the owner, and ac. of the work there is an entire omission to cordingly no relief was granted any of the provide for the final payment of 25 per cent. remaining claimants.

35 days after completion, which is intended The judgment of the trial court is errone for the benefit of lien claimants, and the mere ous for several reasons: First, because the statement in the contract, inserted for the court erred in holding the contract between benefit of the contractor, that the owner the owner and contractor valid as affecting might pay the whole amount when receipts the rights of lien claimants. Section 1183, were produced, cannot be construed as a subCode Civ. Proc., provides: "All such con stantial compliance with the statute, or even tracts shall be in writing when the amount an attempt in that direction. The whole agreed to be paid thereunder exceeds one contract price was made payable upon comthousand dollars, and shall be subscribed by pletion, and the last payment was treated the parties thereto, and the said contract, or by all parties to the contract as the comple al memorandum thereof, setting forth * * *

tion payment; for the amount of such paythe total amount to be paid thereunder, and ment was depleted by the expenses of comthe amounts of all partial payments, together pletion made necessary by abandonment.

In with the times when such payments shall be Hampton v. Christensen, 84 Pac. 203, 148

Cal. 729, Mr. Justice lenshaw, speaking for such lien is based upon the theory that the the court, says: “Whatever may be said of materialman and laborer produce the thing other payments, this amount of money (35 upon which the lien is declared. Tuttle v. day payment) cannot lawfully be depleted

Montford, 7 Cal. 359. In Jones v. Hotel or reduced to the injury of any such claim

Company, 30 C. C. A. 108, 86 Fed. 370, it is ant”-that out of the completion payment said by the court, in relation to statutes the necessary cost to the owner on com

creating similar rights of lien: “But the vapletion, in case of abandonment, must be lidity of the statutes need not be rested upon taken. "If such completion payment be more mere authority. They find sanction in the than exhausted by the demands of the owner,

dictates of natural justice, and most often the excess of such demand cannot be administer an equity which has recognition carried over and made a charge against the under every system of law. That principle 25 per cent. final payment, to the injury of

is that every one who by his labor or materiany lien claimant thereon. . This fi- als has contributed to the preservation or ennal payment is the only fund which the Leg. hancement of the property of another there islature has sequestered to meet the demand by acquires a right to compensation.” It is of the lien claimants. To permit this (its no infringement upon an existing right of depletion) would be to deprive them of their property to require one who has procured constitutional right to a lien." The court another to create a structure to pay for the erred in refusing to award a lien for the full work and materials involved in such creavalue of the material and labor to those who tion. When the owner of land makes such bestowed the same after the contract was

structure a part of the land previously ownfiled.

ed by him, it is not inequitable or destructive The court erred in awarding Wakefield of his rights to say that, baving by his own preference over other lien claimants furnish- act made this labor and material of another ing materials and performing labor. The an inseparable portion of his land, the lien constitutional provision which gives to me upon the building should extend to the land chanics, materialmen, artisans, and laborers necessary for its use. Having made the of every class a lien upon the property upon building a part of his land, it became as which they have bestowed labor or furnished such charged with the lien upon the strucmaterials. places such parties in the same ture. Linck v. Meikeljohn, 2 Cal. App. 508. class. Their equality is established by the 84 Pac. 309. Constitution and cannot be impaired or de It is next contended that sections 1183 and stroyed by the Legislature. Miltimore v. Nof-1184, Code Civ. Proc., which provide the ziger Bros. L. Co. (Cal.) 90 Pac. 114. The al terms of valid contracts as affecting those in lowance of an attorney's fee to the various excess of $1,000, are unconstitutional as an claimants is also erroneous. Builders' Sup- attempt to circumscribe the right of private ply Depot v. O'Connor (Cal.) 88 Pac. 982. contract within the usual pursuits of busi

Respondent Nolan, in a supplemental brief, ness, and are an unreasonable restriction ur contends for the validity of the contract and on the owner of his rights in regard to its urges in support thereof that section 15, art. use and upon his power to make contracts 20, of our state Constitution, which guaran concerning the same; this contention being ties to every laborer and materialman a lien based largely upon the decisions of our own upon a structure for the value of labor be Supreme Court in Stimson Mill Co. v. Braun. stowed or materials furnished in its con 136 Cal. 123, 68 Pac. 481, 57 L. R. A. 726, 89 struction, is subordinate to section 1, art. 1, Am. St. Rep. 116, and Gibbs v. Tally, 133 of the same Constitution, which declares Cal. 373, 65 Pac. 970.1 We do not accept eithat "all men are by nature free and inde ther of these decisions as determinative of pendent, and have certain inalienable rights, the questions here involved. Assuming, as among which are those of

acquir we do, the validity of section 15, art. 20, of Ing, possessing and protecting property";

and protecting property"; the Constitution, which guaranties the lien, and that it is subordinate, also, to section 13, we find that this constitutional right of the art. 1, which declares that "no person shall laborer and materialman extends to the full be deprived of life, liberty or property with value of all labor and materials bestowed or out due process of law."

furnished; and, without legislation, such Respondent properly insists that the in value is the measure of recovery. The Legisalienable right to acquire and possess prop

lature has seen fit, under the authority given erty includes the right of contracting with it by the Constitution, to provide by the secreference thereto. Were we to concede the tions complained of certain conditions, upon subordinate character of section 15, still we the observance of which the constitutional are unable to appreciate the conflict, one measure of lien and recovery is restricted with the other, which is suggested by re to the sum specified in the contract between spondent The constitutional lien to the the owner and contractor. There is no atlaborer and materialman is given upon the tempt to enlarge the rights of lien claimants structure as the principal thing. Humboldt under any circumstances, for under the secLumber Co. v. Crisp, 146 Cal. 686, 81 Pac. tions mentioned, where a valid contract is 30, 106 Am. St. Rep. 75. The right to declare made, the value of the thing furnished meas

* 60 L. R. A. 816.

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