pose that there be "docketed a judgment against the defendant J. E. Harris for the amount of such deficiency which may remain unpaid on the judgment of plaintiff, and that plaintiff have execution against the defendant for the amount thereof."

The defendant Tryon appealed from the judgment, a bill of exceptions accompanying his appeal therefrom, and served his notice of appeal on the plaintiff alone. The notice of appeal given by defendant Tryon was only intended to embrace an appeal from the judgment in so far as it affected him by decreeing a lien upon his property, providing for the sale thereof and application of the proceeds to the satisfaction of the claim of plaintiff. The original contractor, Harris, against whom the personal judgment was entered, took no appeal, nor was any notice of appeal served on him by the appellant, Tryon.

The district court of appeal for the third appellate district, before which this matter came up originally, dismissed the appeal on motion of respondent, on the ground that Harris, the original contractor, was an adverse party within the meaning of section 940 of the Code of Civil Procedure, and should have been served with notice of appeal; that he was interested in maintaining the judgment of lien; that a reversal of the judgment in that respect would be against his interest; and not having been served with such notice, the court was without jurisdiction to determine the appeal on its merits. A petition by appellant for a further hearing and determination of the cause before this court was granted, and upon the hearing here the motion to dismiss the appeal is renewed and submitted with the submission of the cause upon its merits.

The rule, of course, is that in order to confer jurisdiction upon an appellate court to entertain an appeal all adverse parties parties to the controversy whose interests would be injuriously affected by a reversal of the judgment-must be brought before the court. Persons whose interest in the subject-matter is determined by the judgment appealed from, and which interest will be injuriously affected by its reversal, are adverse parties within the meaning of section 940 of the Code of Civil Procedure upon whom notice of appeal must be served. It is said "an adverse party to an appeal means the party whose interest in relation to the subject of the appeal is in conflict with a reversal of the order or the decree

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appealed from, or the modification sought by the appeal." (Randall v. Hunter, 69 Cal. 80, [10 Pac. 130]; Green v. Berge, 105 Cal. 52, [45 Am. St. Rep. 25, 38 Pac. 539]; Pacific Mut. Life Ins. Co. v. Fisher, 106 Cal. 224, [39 Pac. 758]; Mohr v. Byrne, 132 Cal. 250, [64 Pac. 257].)

If this is the relation which the original contractor Harris bears to the appeal,-if his interest in the judgment appealed from is such that its reversal will injuriously affect him,— then, as an adverse party, he should have been served with the notice of appeal. Respondent insists that such is his relation to it, his contention being that it is to the interest of the original contractor that the judgment of the trial court establishing the lien should stand, because by enforcing the lien against appellant's property a sufficient sum might be realized through a sale of it to fully discharge the indebtedness due to plaintiff and relieve the original contractor from all obligation to plaintiff; that to reverse the judgment so as to defeat the lien would deprive the original contractor of such advantage under the judgment establishing it, and leave him subject to have the personal judgment recovered against him enforced under execution. In this view, it is insisted by respondent that as the original contractor will be injuriously affected in his interest if it is reversed, it was essential that notice of appeal be served upon him.

The position of appellant is, that a reversal of the judgment, so far as the lien is concerned, which alone is involved. on this appeal, cannot injuriously affect the original contractor, it being asserted that if the lien be eliminated from the judgment by a reversal, the effect would be, although no appeal was taken by the original contractor therefrom, to destroy the personal judgment against him; that within the doctrine of Miller v. Carlisle, 127 Cal. 327, [59 Pac. 785], the jurisdiction of the superior court to entertain this action, as the claim was for less than three hundred dollars, depended solely on the assertion of the right of lien and its establishment by that court, and if it should be determined upon this appeal that there was no lien, then, as the amount of the claim asserted was less than three hundred dollars, the superior court had no jurisdiction to enter a personal judgment against the original contractor for one hundred and seventy-eight dollars; that the personal judgment is void and falls with the rever

sal of the judgment establishing the lien on which jurisdiction of the superior court in the cause alone depended. And it is further insisted by appellant that even if, as claimed by respondent, the personal judgment against the contractor, is a valid one which would be unaffected by this appeal, the contractor could not be prejudiced by a reversal of the judgment establishing the lien; that the liability of the contractor for the full amount of the claim is fixed by it, and such liability would not be affected whether that portion of the judgment establishing the lien be reversed or affirmed.

It is only proper in connection with this statement of appellant's position to say that when his briefs were filed, and the case of Miller v. Carlisle was cited and relied on in support of that position, the case of Becker v. Superior Court, 151 Cal. 313, [90 Pac. 689], had not been decided. In this latter case a conclusion was reached that the rule stated in Miller v. Carlisle was not the correct one, but, on the contrary, the true doctrine is that when the superior court acquires jurisdiction by the filing of a suit to enforce a lien of mechanics and others, under the statute relating to such liens, it has jurisdiction to render a personal judgment for the amount claimed, although the right to a lien is denied and the amount claimed is less than three hundred dollars. We mention this in justice to appellant, while at the same time a reference to this latter case of Becker v. Superior Court shows that the personal judgment entered against the original contractor in this case is a valid, subsisting judgment, which, as it is not appealed from, stands unaffected or unaffectable by any action which this court may take on the appeal of appellant involving the validity of the lien. Under this personal judgment the primary obligation to pay the amount due plaintiff is fixed upon the original contractor, such primary obligation being secured by a lien enforced against the property of the owner. This being the condition and effect of that judgment, it will be seen, upon a little reflection and consideration of the record before us on its merits, that it can be of no moment to the contractor whether upon this appeal of Tryon, the owner, it be determined the lien is valid or invalid-whether the judgment as to it be affirmed or reversed. We say, upon the record before us, because it is upon an examination of that record in connection with the rights of owners charged with a lien as against orig

inal contractors under the Mechanics' Lien Law that we feel satisfied warrants a conclusion that no right of the original contractor here can be affected adversely or at all by a reversal of the judgment as to the lien. It, of course, appears from the record before us that the primary obligation to pay the indebtedness for which the judgment was obtained was upon the original contractor. He was personally responsible to the subcontractor for the payment of the claim under his contract with him. The law merely gave the subcontractor, in default of payment by the contractor, a right of lien against the owner's property enforceable by foreclosure to secure the payment which the contractor was primarily obligated to make. But the law also (Code Civ. Proc., sec. 1193) provides that where a lien is filed against the property of the owner on an indebtedness due from the original contractor to the lien claimant, the original contractor shall defend against any action brought thereon at his own expense; that during the pendency of the action the owner may withhold from the contractor the amount of money for which such lien is filed; that in case of judgment against the owner or his property upon the lien, he shall be entitled to deduct from any amount due the contractor the amount of such judgment and costs, and if the amount thereof shall exceed the amount due by the owner to the contractor, or if he has settled with the contractor in full, he shall be entitled to recover back from the contractor any amount paid by him in excess of the contract price and for which the contractor was originally the party liable.

It appears from the record here that there is in the hands of the appellant, owner of the lot, over one thousand nine hundred dollars due from him to the original contractor. Under these circumstances, while it may be said theoretically, and on the face of the judgment itself, that the contractor would be benefited by having the judgment of lien stand and satisfaction of the claim of plaintiff had by a sale of the owner's property, yet practically, and by virtue of the section of the code referred to, no advantage or benefit accrues to him at all thereby. In any event--reversal or affirmance-his primary liability for payment of the claim to plaintiff remains unaffected under the personal judgment obtained against him. Under any theory he can only claim that he would be injuriously affected by a reversal, because under the judgment as it

stands he is benefited by the enforcement of the lien. But under the section of the code referred to and upon the record this theory is illusive. If the judgment establishing a lien stands and is enforced by a sale of the property, or is discharged by the owner through payment of the judgment, the owner is entitled to reimburse himself from the moneys in his hands due the contractor, which in this particular case the record shows are ample for that purpose. All this being true, it is obvious that in this particular case on a consideration of the motion on the merits of the appeal, neither an affirmance nor a reversal of the judgment so far as it establishes a lien against appellant's property could be of any advantage to the original contractor. If it were reversed, he would be still liable under the personal judgment against him, which is unaffected by this appeal, and under which the primary liability on his part to plaintiff is fixed; and if it were affirmed, the owner would have the right, which in this case could be effectively exercised, of reimbursing himself or discharging the judgment as a lien against his property from moneys in his hands due the original contractor, or could pay the judgment in discharge of the lien to the subcontractor directly. Under this view it appears to us that it is a matter entirely immaterial to the original contractor whether it be decided on appeal that the portion of the judgment decreeing a lien be valid or invalid. No substantial right of the original contractor under the judgment of lien is affected. Hence he was not a party interested in maintaining it and not an adverse party upon whom a notice of appeal should have been served.

The district court of appeal in dismissing this appeal when the matter was before it, based its decision on Lancaster v. Maxwell, 103 Cal. 67, [36 Pac. 951], which it cited as justifying its action. In that case, however, it does not appear that any personal judgment was rendered against the original contractor fixing a primary liability on his part to the subcontractor for the entire amount of his claim. The personal judgment there rendered was for such a deficiency as appeared after the sale of the property, and this fact seems to have controlled the decision. In the case at bar the personal judgment is for the entire amount of the claim, separate and distinct from any deficiency judgment which it is provided shall be docketed against the original contractor. Nothing is said in the