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 evidence of character of neither party thereto is admissible. 5 Am. & Eng. Ency. of Law, pp. 861, 862; 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

legal discretion of the trial court. The court may modify its decree as to their custody at any time. Section 138, Civ. Code; Crater v. Crater, 135 Cal. 635, 67 Pac. 1049. "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.

(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 Supreme 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 moving 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. SAME-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 County; Walter Bordwell, Judge.

Action by Manuel Montijo and others against Robert Sherer and others. Appeal by plaintiffs from an order setting aside a default and granting leave to answer to defendant, Mark Ryan. Affirmed.

Hugh J. Crawford and Wm. Crawford, for appellants. Bicknell, Gibson, Trask, Dunn & Crutcher (Edward E. Bacon, of counsel), for respondent.

TAGGART, J. Appeal from an order setting aside default and granting leave to

answer.

Defendant Ryan was an employé of Robert Sherer & Co. and was joined with the members of that copartnership in an action for damages for forcible entry upon premises, of which plaintiffs allege themselves to have been the owners and in the actual possession, at the time of such entry, to wit, on February 2, 1906, and to and until February 14, 1906, and at divers times between said dates. Ryan was served with summons February 20, 1906, and the members of Sherer & Co. served on February 21st and 23d, respectively. Sherer & Co. answered, but Ryan failed to do so, and on March 5, 1906, the default of Ryan for not answering was regularly entered, and thereafter, on March 13, 1906, judgment was taken against him as prayed for in the complaint, to wit, for the sum of $1,500 (the same to be trebled) and for costs. On March, 17, 1906, he served notice on plaintiffs' attorney of his intention to move the court to set aside the said default and to permit him to answer the complaint filed in the action. The motion was noticed to be made on the records and files in said action and the affidavits of himself and attorney and his verified answer to the complaint, a copy of which was served with the notice. The grounds specified were that "said defendant failed to answer in time through inadvertence, mistake, and excusable neglect."

Appellants claim the order granting the motion was error for two reasons: (1) The grounds of the motion are stated conjunctively in the notice and both affidavits filed, and the showing made fails to support the conjoined reasons of inadvertence, mistake, and excusable neglect; (2) the affidavit of merits is insufficient.

The affidavits are not to be construed with the strictness applied to a pleading in matters of form, and if they show facts to justify the action of the court on the ground of Inadvertence, mistake, or excusable neglect, it will be sufficient. By the affidavits and verified answer the following facts are made to appear: That the Los Angeles Interurban Railway Company was the owner and in the peaceable possession of the premises described in plaintiffs' complaint at the time of the alleged entry thereon by defendants, or, at

least, that Ryan so believed. That Ryan was a laborer in the employ of his codefendants and it was in such employment he went upon said lands. That upon being served he called the attention of his employers to the service of summons upon him and was told by them that he need not bother about the matter, as the suit would be taken care of by the Los Angeles Interurban Railway Company. That he relied upon such statement and filed no answer. Under the circumstances, he had a right to rely upon the statement that the corporation whom he believed to be the real party in interest would protect him. The showing by the affidavit of Attorney Crutcher as to the reasons why he did not answer for defendant Ryan before his appearance to make the motion we do not think material.

The "records and files" upon which the motion was also based are not before us, but it does appear from the affidavit of Albert Crutcher that an answer had been filed on behalf of the defendants Sherer & Co. This was a circumstance that the court should have, and no doubt did, consider in the exercise of its discretion in the matter. That there were other pleadings before the court raising the same issues of fact as those which the defendant in default asked to have tried in his behalf might well and properly have influenced the court in case of doubt. It was authorized to examine them for the purpose of determining the motion. Lakeshore Co. v. Modoc Co., 108 Cal. 263, 41 Pac. 472. The discretion of the court in vacating the default and setting aside the judgment thereon appears to have been liberally exercised with a view to the trial of the case on its merits. This was in accordance with the universal rule. Merchants' Co. v. Los Angeles Co., 128 Cal. 621, 61 Pac. 277.

Neither of the affidavits filed contains a showing that alone would be sufficient as au affidavit of merits, but the verified answer denies every material allegation of the complaint. This has been held sufficient too often by the Supreme Court to be considered an open question. Fulweiler v. Mining Co., 83 Cal. 129, 23 Pac. 65; Merchants' Co. v. Los Angeles Co., supra; Melde v. Reynolds, 129 Cal. 314, 61 Pac. 932.

Order appealed from affirmed.

We concur: ALLEN, P. J.; SHAW, J.

(5 Cal. App. 754) STIMSON MILL CO. v. NOLAN et al. BERG et al. v. SAME. TILDEN v. SAME. FRICKFLEMING HARDWARE CO. et al. SAME. (Civ. 355.)

(Court of Appeal. Second District, California. June 19, 1907. Rehearing Denied by Supreme Court Aug. 17, 1907.)

1. MECHANICS' LIENS--CONTRACT FOR IMPROVEMENT STATUTORY PROVISIONS-TIME OF FILING.

Under Code Civ. Proc. § 1183. providing that, when the price for a building exceeds

$1,000, the contract shall be in writing subscribed by the parties thereto and shall, before the work is commenced, be filed with the county recorder, otherwise it shall be void as to the parties, and the labor and materials furnished by the persons other than the contractor shall be deemed to have been done or furnished at the personal instance of the owner, and they shall have a lien for the value thereof, where work was commenced on a building under an oral agreement for an amount exceeding $1,000, and subsequently a written contract embodying the terms of the oral agreement was signed and filed, the contract was void, and the laborers and materialmen were entitled to a lien on the property for the full value of the labor or material furnished.

[Ed. Note. For cases in point. see Cent. Dig. vol. 3-4, Mechanics' Liens, § 289.]

2. SAME TIME OF FINAL PAYMENT.

Code Civ. Proc. § 1184. provides that, where the contract price for a building exceeds $1,000, it shall in the contract be made payable in installments, etc., provided that at least 25 per cent. of the price shall be made payable at least 35 days after the completion of the contract; that as to all liens except that of the contractor the contract price shall not be diminished by any prior or subsequent indebtedness, offset, or counterclaim, in favor of the reputed owner against the contractor; and that, if the contract does not conform substantially to the provisions of the section. labor and materials furnished by persons other than the contractor shall be deemed to have been done or furnished at the request of the person letting the contract, and they shall have a lien for the full value thereof. A building contract exceeding $1,000 provided that the final payment should be made. when the building was completed and receipts in full were shown to the owner. but did not provide for payment within 35 days from completion of the building. The contractor abandoned the contract, and nearly all the unpaid balance was consumed in completing the building. Held, that the laborers and materialmen were entitled to a lien for the full value of their services of material furnished.

3. SAME EFFECT PRIORITIES.

The constitutional provision, which gives to mechanics, materialmen, and laborers of every class a lien upon the property upon which they have bestowel labor or furnished material, places all such parties in the same class, and the Legislature cannot give preference to one performing labor.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Mechanics' Liens, §§ 336-339.] 4. SAME-ENFORCEMENT-ATTORNEY'S FEE.

In an action to enforce a mechanic's lien. an allowance of attorneys' fees to a claimant is

erroneous.

5. CONSTITUTIONAL LAW - DUE PROCESS OF LAW-MECHANICS' LIENS.

If Const. art. 20. § 15, providing for a mechanic's lien, were subordinate to article 1, § 1, thereof, in relation to the inalienable right to acquire, possess, and protect property, and to article 1, § 13, thereof, prohibiting depriving owners of property without due process of law, it would not affect the validity of Code Civ. Proc. $$ 1183. 1184, relating to contracts for the construction of buildings and to mechanics' liens, since the lien is primarily upon the building which the laborers or materialmen have contributed to, and. the owner having made the building a par of the realty, the whole becomes charged with the lien.

[Ed. Note.-For cases in point. see Cent. Dig. vol. 10. Constitutional Law. § 940.] 6. SAME-RIGHT TO CONTRACT.

Code Civ. Proc. $$ 1183, 1184, providing the terms of valid contracts for more than $1,000 for the construction of improvements on

land and for mechanics' liens thereon, are not unconstitutional as limiting the right to contract, since Const. art. 20, § 15, provides for a lien which without the statutes would be for the full value of the labor or material furnished, and the statutes merely curtail the liability under certain conditions.

7. SAME DUE PROCESS OF LAW.

Code Civ. Proc. $$ 1183, 1184, relating to contracts for the construction of improvements and mechanics' liens thereon, do not take property without due process of law, since the owner makes his contract with the Constitution and laws in mind, and they form part of his contract, and they do not increase the contract price, since their effect is to protect the contractor when he honestly discharges his obligations.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Constitutional Law, § 940.]

Appeal from Superior Court, Los Angeles County; Curtis D. Wilbur, Judge.

Actions by the Stimson Mill Company, a corporation, against M. J. Nolan and others; by C. G. Berg and others against M. J. Nolan and others, in which N. S. Wakefield and L. N. Wise were cross-complainants; by J. F. Tilden against M. J. Nolan and others, and by the Frick-Fleming Hardware Company and others against M. J. Nolan and others. From an adverse judgment, the Stimson Mill Company, L. N. Wise, J. F. Tilden, and the Frick-Fleming Hardware Company appeal. Reversed and remanded.

Borden & Carhart, W. C. Batcheller, A. L. & J. E. Stephens, and Charles L. Batcheller. for appellants. F. B. Guthrie, E. A. Meserve, Frank James, W. C. Petchner, and Scarborough & Bowen, for respondents.

ALLEN, P. J. Appeal from a judgment of the superior court of Los Angeles county.

It appears from the record that on or before June 22, 1903, defendant Nolan, the owner of the premises involved, and one Culver, a contractor, had concluded oral negotiations through which Culver had agreed to furnish materials and construct a house on said premises for the consideration of $3,100. That on said last-named date Culver, with Nolan's consent, commenced the work of such construction, and certain lien claimants delivered upon the premises the brick necessary for the foundation, while others delivered upon the premises the lumber necessary for the construction. Thereafter, on June 26th, Nolan and Culver entered into a written contract for the construction of a house, which was in all respects the same as the oral agreement. In this written contract the construction price of $3.100 was made payable in four equal installments, of which three were to be paid during the construction, and the last "when the house was completed and receipts in full shown to the owner." After this contract had been executed, and such contract and an accompanying bond filed in the recorder's office, other lien claimants furnished materials and performed labor upon said

building. The aggregate value of all materials and labor furnished by all claimants, on October 26, 1903, amounted to $1,770. On this date the contractor abandoned the work. The court finds that on and before the abandonment the value of the work and materials furnished under the contract upon the house, estimated as nearly as may be by the standard of the whole contract price here involved. amounted to $2,520, and that the contractor had been previously paid by the owner $2,325, leaving a balance of $195 due, which the court found was the whole amount due from the owner to the contractor. The whole amount of expenditure required upon the part of the owner to complete the building is not made to appear. It appears that there was unpaid to the lien claimants on the 26th of October, 1903, on account of the materials furnished and labor performed by them, the aggregate sum of $1,062.94. It further appears that the building was completed December 1, 1903, and that thereafter and within due time all of these claimants duly perfected their liens. Various suits were instituted by these claimants upon their liens, all of which were consolidated and heard in this action. Upon the trial, the court found the contract between Nolan and Culver a valid one as to all parties furnishing materials or performing labor after its filing, but inoperative as to those who furnished labor and materials before such filing; and, further, that the omission to reserve 25 per cent. of the contract price 35 days after completion did not invalidate the contract. Judgment was accordingly rendered in favor of the lien claimants who furnished labor and materials after the filing of the contract to the full extent of their claims; that Wakefield, one of the claimants. being a laborer, and his claim being for labor, had preference and priority over the other claimants who furnished materials after the filing of the contract, and that claim, amounting to $144.25, with costs for filing the lien and attorney's fees, was adjudged a preferred claim and the full amount thereof ordered paid, which payment exhausted all the money so found in the hands of the owner, and accordingly no relief was granted any of the remaining claimants.

The judgment of the trial court is erroneous for several reasons: First, because the court erred in holding the contract between the owner and contractor valid as affecting the rights of lien claimants. Section 1183, Code Civ. Proc., provides: "All such contracts shall be in writing when the amount agreed to be paid thereunder exceeds one thousand dollars, and shall be subscribed by the parties thereto, and the said contract, or a memorandum thereof, setting forth the total amount to be paid thereunder, and the amounts of all partial payments, together with the times when such payments shall be

**

due and payable, shall, before the work is commenced, be filed in the office of the county recorder of the county or city and county, where the property is situated; otherwise they shall be wholly void, and no recovery shall be had thereon by either party thereto; and in such case, the labor done and materials furnished by all persons aforesaid, except the contractor, shall be deemed to have been done and furnished at the personal instance of the owner, and they shall have a lien for the value thereof." No surreptitious commencement of work is involved. Hence we have a deliberate violation of the provisions of this section, the effect of which is declared by the statute. To hold such a contract valid, under the circumstances of this case, is to ignore the plain provisions of a statute. The contract being void, those entitled to liens under the Constitution are unrestricted in their rights to have a lien for the full value of materials and labor furnished. Laidlaw v. Marye, 133 Cal. 174, 65 Pac. 391.

*

Again, section 1184, Code Civ. Proc., provides: "No part of the contract price shall, by the terms of any such contract, be made payable, nor shall the same or any part thereof be paid in advance of the commencement of the work, but the contract price shall, by the terms of the contract, be made payable in installments at specified times after the commencement of the work, or on the completion of specified portions of the work, or on the completion of the whole work; provided, that at least twenty-five per cent. of the whole contract price shall be made payable at least thirty-five days after the final completion of the contract. * In case such contracts and alterations thereof do not conform substantially to the provisions of this section, the labor done and materials furnished by all persons except the contractor shall be deemed to have been done and furnished at the personal instance and request of the person who contracted with the contractor, and they shall have a lien for the value thereof." In this contract so executed and filed after the commencement of the work there is an entire omission to provide for the final payment of 25 per cent. 35 days after completion, which is intended for the benefit of lien claimants, and the mere statement in the contract, inserted for the benefit of the contractor, that the owner might pay the whole amount when receipts were produced, cannot be construed as a substantial compliance with the statute, or even an attempt in that direction. The whole contract price was made payable upon completion, and the last payment was treated by all parties to the contract as the completion payment; for the amount of such payment was depleted by the expenses of completion made necessary by abandonment. In Hampton v. Christensen, 84 Pac. 203, 148

Cal. 729, Mr. Justice Пenshaw, speaking for the court, says: "Whatever may be said of other payments, this amount of money (35day payment) cannot lawfully be depleted or reduced to the injury of any such claimant" that out of the completion payment the necessary cost to the owner on completion, in case of abandonment, must be taken. "If such completion payment be more than exhausted by the demands of the owner, the excess of such demand cannot be carried over and made a charge against the 25 per cent. final payment, to the injury of any lien claimant thereon. * This fi

nal payment is the only fund which the Legislature has sequestered to meet the demand of the lien claimants. To permit this (its depletion) would be to deprive them of their constitutional right to a lien." The court erred in refusing to award a lien for the full value of the material and labor to those who bestowed the same after the contract was filed.

The court erred in awarding Wakefield preference over other lien claimants furnishing materials and performing labor. constitutional provision which gives to mechanics, materialmen, artisans, and laborers of every class a lien upon the property upon which they have bestowed labor or furnished materials. places such parties in the same class. Their equality is established by the Constitution and cannot be impaired or destroyed by the Legislature. Miltimore v. Nofziger Bros. L. Co. (Cal.) 90 Pac. 114. The allowance of an attorney's fee to the various claimants is also erroneous. Builders' Supply Depot v. O'Connor (Cal.) 88 Pac. 982.

Respondent Nolan, in a supplemental brief, contends for the validity of the contract and urges in support thereof that section 15, art. 20, of our state Constitution, which guaranties to every laborer and materialman a lien upon a structure for the value of labor bestowed or materials furnished in its construction, is subordinate to section 1, art. 1, of the same Constitution, which declares that "all men are by nature free and independent, and have certain inalienable rights, among which are those of acquir

Ing, possessing and protecting property"; and that it is subordinate, also, to section 13, art. 1, which declares that "no person shall be deprived of life, liberty or property without due process of law."

Respondent properly insists that the inalienable right to acquire and possess property includes the right of contracting with reference thereto. Were we to concede the subordinate character of section 15, still we are unable to appreciate the conflict, one with the other, which is suggested by respondent. The constitutional lien to the laborer and materialman is given upon the structure as the principal thing. Humboldt Lumber Co. v. Crisp, 146 Cal. 686, 81 Pac. 30, 106 Am. St. Rep. 75. The right to declare

such lien is based upon the theory that the materialman and laborer produce the thing upon which the lien is declared. Tuttle v. Montford, 7 Cal. 359. In Jones v. Hotel Company, 30 C. C. A. 108, 86 Fed. 370, it is said by the court, in relation to statutes creating similar rights of lien: "But the validity of the statutes need not be rested upon mere authority. They find sanction in the dictates of natural justice, and most often administer an equity which has recognition under every system of law. That principle is that every one who by his labor or materials has contributed to the preservation or enhancement of the property of another thereby acquires a right to compensation." It is no infringement upon an existing right of property to require one who has procured another to create a structure to pay for the work and materials involved in such creation. When the owner of land makes such structure a part of the land previously owned by him, it is not inequitable or destructive of his rights to say that, having by his own act made this labor and material of another an inseparable portion of his land, the lien upon the building should extend to the land necessary for its use. Having made the building a part of his land, it became as such charged with the lien upon the structure. Linck v. Meikeljohn, 2 Cal. App. 508. 84 Pac. 309.

It is next contended that sections 1183 and 1184, Code Civ. Proc., which provide the terms of valid contracts as affecting those in excess of $1,000, are unconstitutional as an attempt to circumscribe the right of private contract within the usual pursuits of business, and are an unreasonable restriction upon the owner of his rights in regard to its use and upon his power to make contracts concerning the same; this contention being based largely upon the decisions of our own Supreme Court in Stimson Mill Co. v. Braun, 136 Cal. 123, 68 Pac. 481, 57 L. R. A. 726, 89 Am. St. Rep. 116, and Gibbs v. Tally, 133 Cal. 373, 65 Pac. 970.1 We do not accept either of these decisions as determinative of the questions here involved. Assuming, as we do, the validity of section 15, art. 20, of the Constitution, which guaranties the lien, we find that this constitutional right of the laborer and materialman extends to the full value of all labor and materials bestowed or furnished; and, without legislation, such value is the measure of recovery. The Legislature has seen fit, under the authority given it by the Constitution, to provide by the sections complained of certain conditions, upon the observance of which the constitutional measure of lien and recovery is restricted to the sum specified in the contract between the owner and contractor. There is no attempt to enlarge the rights of lien claimants under any circumstances, for under the sections mentioned, where a valid contract is made, the value of the thing furnished meas

160 L. R. A. 815.