who contracted directly with the owner and subcontractors. By the terms of the statute they become, for the purpose of their lien, original contractors with the owner, but cannot recover against him personally. (Southern Cal. Lumber Co. v. Schmitt, supra.)

The judgment and order appealed from are affirmed.

PATERSON, J., concurred.

Fox, J., concurring. I concur in the conclusion reached by Mr. Justice Works in the foregoing opinion, and generally in the line of reasoning by which that conclusion is reached. I have no doubt that the legislature has full power to provide that where, as was done in this case, an owner of real estate, without the intervention of a contract fixing the measure of his liability, proceeds personally, or through another acting with his knowledge, to make improvements thereon, he shall be liable to mechanics, laborers, and material-men for the value of their labor and material, and they shall have a lien therefor. In this case there was no contract; for the law itself declares that if not recorded the pretended contract is "wholly void." It is, therefore, as if it had never been made, and fixes no measure of liability for either party, or for any purpose. But after negotiating the terms of the contract with Lane, which was never completed, and never became a valid contract, Howes permitted him to procure material and erect the building; in other words, permitted Lane to act as his agent in the construction of the building upon which these liens were filed. The statute expressly declares that in such cases the subcontractor-the laborer and materialman-shall be deemed to have contracted directly with the owner, and shall have a lien for the value of his material or labor. There is no constitutional objection to such a provision. The obligation most frequently assumed by all men engaged in business, and most frequently enforced by the courts, is an implied one to do the same

thing, to pay the value of labor done or materials furnished at the request of the party receiving the benefit thereof, and it makes no difference whether the request was made by him in person, or through one whom he had held out to the world, or to the person furnishing the labor or material, as his agent in the premises.

But it seems to me that the opinion of Mr. Justice Works is susceptible of a construction which would enable a stranger to go upon the land of an absent or nonresident owner, and through laborers and material-men improve him out of his real estate without his knowledge. The legislature has no power to authorize such a proceeding, and no precedent should be established which would sanction it. No person should be entitled to a lien or personal judgment against an owner in any case, unless he contracted the liability in person, or it be shown that he had actual notice in some form of the fact that his property was being improved in a manner which might create a liability or lien. A construction of the statute which would give it the effect of creating a lien, where the owner had no knowledge of the improvement, would render it unconstitutional. In this case there is no pretense of want of knowledge, and everything shows that the owner had actual knowledge of the improvement, and the law charges him with knowledge of the fact that there was no contract limiting his liability.

Hearing in Bank denied.

[No. 12445. Department Two.-November 9, 1889.]

LIZZIE WADSWORTH, APPELLANT, v.

WILLIAM

WADSWORTH ET AL., RESPONDENTS.

DEFAULT-DIVORCE-ANNULMENT OF MARRIAGE.-In an action for divorce or annulment of marriage, the fullest opportunity to be heard should be accorded to the parties, and the court should be more liberal in relieving against defaults than in other cases.

ID. CROSS-COMPLAINT.-There may be a cross-complaint in an action for divorce or annulment of marriage.

APPEAL from an order of the Superior Court of the city and county of San Francisco refusing to set aside a judgment.

The facts are stated in the opinion.

W. C. & I. G. Burnett, and Dorn & Dorn, for Appellant.

Tyler & Tyler, for Respondents.

George D. Collins, and Fisher Ames, amici curia.

HAYNE, C.-This action was brought against William Wadsworth, Sen., for annulment of marriage, upon the ground that at the time of the marriage he had a wife living. William Wadsworth, Jr., was joined as a defendant, upon the alleged ground that the other defendant had transferred to him without consideration property purchased in part with funds of the plaintiff, and which would be community property if the marriage had been valid. William Wadsworth, Jr., made default. William Wadsworth, Sen., filed an answer, averring in substance the validity of the marriage. He filed with his answer a cross-complaint for a divorce from the plaintiff on the ground of desertion. The plaintiff filed an answer to the cross-complaint, denying the desertion. By some inadvertence the attorney for the plaintiff did not appear at the trial, and she was not repre

sented thereat. The court granted the defendant a divorce upon his cross-complaint. Within six months the plaintiff moved to have the judgment set aside, on the ground of excusable neglect. This motion was denied, and the plaintiff appeals from the order denying the motion. There is no bill of exceptions. But the stipu lation made by the parties is, in our opinion, sufficient for the purposes of the appeal. (Bonds v. Hickman, 29 Cal. 461; Solomon v. Reese, 34 Cal. 34.)

So far as the divorce awarded to the defendant is concerned, the motion should have been granted under the rule laid down in McBlain v. McBlain, 77 Cal. 509. In that case the court, per Paterson, J., said: "The parties to the action are not the only people interested in the result thereof. The public has an interest in the result of every suit for divorce; the policy and the letter of the law concur in guarding against collusion and fraud; and it shoud be the aim of the court to afford the fullest possible hearing in such matters." In the present case there seems to have been an honest desire on the part of the plaintiff to present her side of the case; and while in an ordinary action the neglect shown might be sufficient to deprive her of a right to relief, yet in this kind of a case a more liberal rule should prevail. And we think that the same reasons require the application of a liberal rule to proceedings for the annulment of marriage, and therefore that the judgment should have been set aside as to the whole case.

It is argued for the plaintiff that the defendant cannot have a cross-complaint in this kind of an action. This question will necessarily arise when the case goes back to the trial court, and should be disposed of. It has long been the practice in this state for the trial courts to entertain cross-complaints in actions for divorce. Doubt was cast upon this practice by what was said in Haley v. Haley, 74 Cal. 489. The point was not decided by that case, but McKinstry, J., in the course

of the opinion, said: "It may not be improper to remark that it is at least doubtful whether the codes provide for a cross-complaint in actions for divorce," and he went on to explain why it was doubtful. The respect which we have for the opinion of that learned judge has induced us to make a careful examination of the subject. There can be no doubt that in the English ecclesiastical courts the defendant could have affirmative relief, not only upon a cross-demand, but even upon his answer, if the evidence showed that he was entitled to it. This was held in the case of Best v. Best, 1 Add. Ecc. 411. That was a suit for divorce a mensa et thoro, upon the ground of cruelty. The defendant set up the adultery of the plaintiff. No relief was granted to either party. But upon the authority of Sir George Saville's case, Dynely v. Dynely, decided in 1732, and Mathew v. Mathew, decided in 1769, the court laid down the rule above stated, and said: "That a cross-suit or separate citation is necessary, however, under such circumstances, has never been asserted, that I am aware of, from that time to the present, and the practice of either, thus held to be optional, appears from that time to have been finally dispensed with."

In Dysart v. Dysart, 1 Rob. Ecc. 106, in which the husband sued for a restitution of conjugal rights, and the wife sought a divorce on the ground of cruelty, Dr. Lushington said, with reference to the charge of cruelty: "If that charge be proved, it is clear that not only must the earl fail in obtaining the decree he prays for, but that the countess will be entitled to a decree of separation." But upon the evidence he held that the charge was not proved.

In Clowes v. Jones, 3 Curt. Ecc. 185, it was held that in a suit by a husband for nullity of marriage, it was competent for the wife, without taking out a cross-citation, to sue for a restitution of conjugal rights.

In Annichini v. Annichini, 2 Curt. Ecc. 210, which