the bond or in a separate suit against the bond alone. other words, the statute contemplates that the plaintiff may at his option embrace within an action to foreclose his lien against the property a cause of action resting upon the claim of lien against the bond; or at his option he may institute separate actions-one to foreclose his lien against the property and the other for the satisfaction of his lien against the bond-but whether combined or separately instituted, the fundamental basis of the cause of action in each instance is the existence of a perfected claim of lien.

Under this construction of the statute the surety will be liable only for the excess of the amount of the lien, if any, over the sum found to be due to the contractor. Any other construction would ignore the settled constitutional and statutory conception of the scope, purpose, and effect of the mechanic's lien law of this state; would violate the familiar equitable rules regulating the relative rights of principal and surety, and also offer opportunity and incentive to collusion between materialmen, etc., and the contractor whereby, if so minded, they could readily and without fear of redress agree to the obvious detriment of the surety that no liens would be perfected against the property to the end that the contractor might be paid in full and the surety alone resorted to for the satisfaction of outstanding claims.

Our conclusion, therefore, is that the failure of the several lien claimants in the present case to perfect their liens within the statutory time operated to defeat their right to recover upon the bond in suit just as effectively as such failure operated to defeat their right to recover upon the claim of lien itself.

It follows from what we have said that the judgment must be and it is hereby modified by striking therefrom the sum of $1,019.90, which is the aggregate sum of the several claims of lien which we have found were filed too late, and also by striking therefrom the sum of $1,315, which the court erroneously charged to the defendants Odell and Jurian as a premature payment. As thus modified the judgment will stand affirmed in favor of the plaintiff Guth in the sum of $627, the plaintiff Mathewson $678, and in favor of the plaintiff Hubbard & Carmichael in the sum of $1,415.28, which is the amount of the O'Brien Lumber Company's lien. Interest, of course, is to be computed upon the claims of lien which

have been duly perfected, from the date of the institution of the action in each instance.

Richards, J., and Kerrigan, J., concurred.

The court, on January 12, 1918, filed the following supplemental opinion herein:

THE COURT.-In the original opinion heretofore filed in this case it was stated that "the condition of the pleadings, evidence, and findings with reference to the Power and Minton claims of lien is identical with the condition of the pleadings, evidence, and findings concerning the Hubbard & Carmichael claim of lien, and inasmuch as the Power and Minton claims were filed for record respectively on July 19 and July 23, 1913, manifestly they were respectively filed twenty and twenty-four days too late, and should not therefore have been allowed." This statement was inaccurate in so far as it applies to the Minton case.

A further investigation of the record shows that Minton filed a claim of lien on July 23, 1913, for the sum of $337.90, which recited that the lien was claimed for materials furnished to Odell and Jurian, the owners, on or about March 31, 1913.

This claim of lien against the owners was made and based, apparently, upon the fact that the owners had used a portion of the material which had been furnished in the first instance to the contractor and left upon the premises when the building was abandoned by the contractor, and which the owners subsequently refused to return to Minton upon demand. The theory of this claim of lien, in other words, was that it was founded upon an implied contract directly with the owners.

The record apparently sustains this theory, and there is some evidence that the materials remaining upon the abandonment of the building and retained by the owners were valued at $126.50. The record shows that the building was actually completed by the owners June 15, 1913, and therefore, upon the theory stated, the claim of lien in question, filed July 23, 1913, was perfected within time, and to the extent of the established value of the materials shown to have been retained, namely, $126.50, was properly allowed and should be included in the judgment against the owners, but not in the judgment against the Surety Company defendant, because Minton did not sue said defendant on this claim.

A petition for a rehearing of this cause was denied by the district court of appeal on January 29, 1918, and the following opinion then rendered thereon:

THE COURT.-In the above-entitled action the lien claimants Mathewson and Guth, whose actions to foreclose their respective liens were consolidated with those of several other lien claimants, have filed a petition for rehearing in which the only point made is that the opinion as originally filed failed to directly make any award for costs incurred upon the appeal, and that, inasmuch as the judgment of the lower court was materially modified as to some of the lien claimants, the costs of appeal, unless otherwise directed, would fall upon all of the respondents under the provisions of the rules of the supreme court and district court of appeal, which provide that "in all cases in which the judgment or order appealed from is reversed or modified, and the order of reversal or modification contains no directions as to the costs of appeal, the clerk will enter upon the record, and insert in the remittitur, a judgment that the appellant recover the costs of appeal." (Rule 23, [160 Cal. liii, 119 Pac. xiii].)

While it is true that the judgment appealed from was materially modified by the original opinion in so far as certain designated lien claimants were concerned, nevertheless it was the intent and purpose of the opinion to affirm the judg ment in so far as it related to the claims of Guth, Mathewson, and O'Brien Lumber Company, and while that intent and purpose is fairly inferable from the concluding paragraph of the opinion, nevertheless to the end that there may be no doubt upon that point we will say that the judgment allowing the Guth, Mathewson, and O'Brien Lumber Company claims was affirmed in all of its substantial features, and therefore it is directed that these particular claimants should be and they are hereby relieved from the costs of appeal.

The petition for rehearing is denied, as is also the petition of the defendant Maryland Casualty Company.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 28, 1918.

[Civ. No. 2318. First Appellate District.-January 7, 1918.]

VERNON HUCKABY, Appellant, v. ELIZABETH A. NORTHAM et al., Respondents.

QUIETING TITLE — APPEAL — CONCESSIONS OF PARTIES - REVERSAL OF JUDGMENT.—On an appeal from a judgment in an action to quiet title in favor of the respondents the judgment must be reversed where it is conceded by the respondents in open court that the evidence is insufficient as a matter of law to support the finding of title in the respondents, and it is also conceded that the appellant was in possession of the property at the time the action was commenced, and that such possession, as against a person who had no better title or no title at all, should have compelled a finding in favor of the appellant.

APPEAL from a judgment of the Superior Court of Fresno County. H. Z. Austin, Judge.

The facts are stated in the opinion of the court.

Theodore A. Bell, for Appellant.

C. K. Bonestell, and W. D. Crichton, for Respondents.

THE COURT.-This was an action to quiet title, in which judgment was rendered in favor of the defendants, and the plaintiff appeals.

It is conceded by the respondents in open court that the evidence is insufficient as a matter of law to support the finding of title in the defendants as made by the trial court; and it is also conceded that the plaintiff was in possession of the property in suit at the time the action was commenced, and that such possession, as against a person who had no better title or no title at all, should have compelled a finding in favor of the plaintiff. That being so, there remains nothing for this court to do but to reverse the case upon that point alone.

The point decided being determinative of the entire case, there is no necessity to discuss the other points presented.

It is ordered that the judgment be and the same is hereby reversed and the cause remanded for a new trial.

[Civ. No. 1963. Second Appellate District.-January 8, 1918.]

L. V. WATT, Respondent, v. BEKINS VAN & STORAGE COMPANY (a Corporation), Appellant.

APPEAL

ORDER DENYING NEW TRIAL-EFFECT OF CODE AMENDMENT.— The amendment of August 8, 1915, to section 963 of the Code of Civil Procedure, taking away the right of appeal from orders denying motions for new trials, is applicable in every case where the order was made subsequent to the date of the taking effect of the amendment, notwithstanding the right to appeal from the judgment in such case had expired prior to the amendment.

APPEAL from an order of the Superior Court of Los Angeles County denying a new trial. Louis W. Myers, Judge.

The facts are stated in the opinion of the court.

R. T. Lightfoot, for Appellant.

Williams, Goudge & Chandler, and Goudge, Robinson & Hughes, for Respondent.

CONREY, P. J.-In this case the defendant on the second day of October, 1915, served and filed its notice of appeal from an order denying its motion for a new trial, which order was made September 13, 1915. Briefs were filed touching upon the merits of the case and the appeal was submitted for decision. Thereafter the fact was noticed by us that at the time when said appeal was attempted to be taken, and also when the order was made, the law did not provide for appeals from orders denying motions for new trial. Formerly the right to take such appeals was provided for by section 963 of the Code of Civil Procedure. By an amendment of that section, in effect on and after August 8, 1915, that right had been taken away. With consent of counsel for respondent, we have permitted counsel for appellant to file a supplemental brief for the purpose of showing, if possible, that the law as thus amended is not applicable to this case. We have given careful consideration to his argument.

The question seems to have been definitely determined against the contention of appellant. In Hirsch v. All Per