same matter; and hence the rule that an action abates upon a showing of the institution and pendency of a prior action between the same parties upon the same subject matter. It is not only unnecessary but would be vexatious to permit the prosecution of a second suit founded upon the same subject matter.

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.

E. A. Williams, for Appellants.

Cartwright & Cashin, for Respondent.

LENNON, P. J.-This is an appeal from a judgment against the defendants and in favor of the plaintiff in an action brought to recover the sum of four hundred and fifty dollars for building materials alleged to have been sold and delivered by plaintiff to the defendants, and used by them as contractors in the construction of a building for one T. J. Hammond in the city of Fresno.

Prior to the commencement of the present action the plaintiff filed its claim of lien against the lot of land upon which the building was erected for the value of the material furnished the defendants, and in due time instituted an action to foreclose said lien, in which the defendants here were joined as defendants with the owner of the building. By their answer the defendants pleaded the pendency of the previous action in abatement of the present action. The plaintiff's motion to strike out this defense was granted, and it is of this that the defendants chiefly complain.

Incidentally counsel for the defendants discuss the question as to whether or not the plaintiff was entitled in this action to a writ of attachment under the provisions of the amendment of 1911 to section 1197 of the Code of Civil Procedure, [Stats. 1911, p. 1319]. The record before us does not show that such a writ was ever issued in this action; and, in the absence of such a showing the question of the plaintiff's right to a writ of attachment is not involved and cannot be considered. In addition to the motion to strike out, the plaintiff interposed a demurrer to the answer of the defendants, which assailed the sufficiency of the facts pleaded as a special defense

in abatement of the present action. The demurrer, however, was not passed upon, for the reason, presumably, that the granting of the motion to strike out in effect disposed of the points raised by the demurrer. No question, therefore, of the technical sufficiency of the plea in abatement as against the demurrer is involved upon this appeal.

Upon the record before us the only question which can be considered is the correctness of the lower court's ruling striking out the defendants' plea in abatement.

The answer of the defendants, in addition to a denial of all of the material allegations of the plaintiff's complaint, averred in effect that prior to the commencement of the present action the defendants entered into a contract with one T. J. Hammond, whereby the defendants agreed for a stipulated sum to erect a building in the city of Fresno for said Hammond; that during the construction of said building the plaintiff in this action furnished goods, wares, and merchandise to be used, and which were actually used in the construction of said building; that thereafter the plaintiff not having been paid for said goods, wares, and merchandise, filed its claim of lien upon the lot of land of said Hammond upon which said building was erected; that thereafter and within the time allowed by law the plaintiff instituted an action in the superior court of Fresno County to foreclose its lien for the value of the same goods, wares and merchandise alleged in the present action to have been sold and delivered to the defendants, and for the value of which the plaintiff in the present action is seeking to recover a personal judgment against the defendants; that the defendants in the present action were joined as defendants in the prior one to foreclose the lien of plaintiff; and that said last-mentioned action had never been dismissed and was pending at the time the present action was commenced.

Under the provisions of section 1197 of the Code of Civil Procedure, as that section was originally enacted and as it stands today, any person to whom a debt is due for materials furnished for the erection of a building may, in addition to an action to foreclose a lien against the building and its owner, maintain a personal action to recover such debt against the person liable therefor; and under the established and approved practice in this state the person contracting for such materials may be made a party defendant with the owner of

the building in an action to foreclose a mechanic's lien. In such an action a personal judgment may be rendered against the contractor, even though foreclosure of the lien be denied. as against the owner of the building. (Hooper v. Flood, 54 Cal. 218, 220; Bates v. Santa Barbara, 90 Cal. 543, [27 Pac. 438]; McMenomy v. White, 115 Cal. 339, [47 Pac. 109]; San Francisco Pav. Co. v. Fairfield, 134 Cal. 220, 226, [66 Pac. 255].)

There seems to be some slight confusion of authority as to whether or not the contractor is a necessary party to an action to foreclose a mechanic's lien; but all of the authorities are agreed that if a personal judgment is desired against the contractor it is proper to make him a party defendant; and such practice is commended as tending to avoid a multiplicity of suits. (Giant P. Co. v. San Diego F. Co., 78 Cal. 193, [20 Pac. 419]; Russ L. & M. Co. v. Garrettson, 87 Cal. 589, [25 Pac. 747]; Green v. Clifford, 94 Cal. 49, [29 Pac. 331]; Yancy v. Morton, 94 Cal. 558, [29 Pac. 1111]; San Francisco Paving Co. v. Fairfield, 134 Cal. 220, [66 Pac. 255].)

It is not the policy of the law to permit different suits to be instituted and pending between the same parties concerning the same subject matter; and hence the rule that an action abates upon a showing of the institution and pendency of a prior action between the same parties upon the same subject

matter.

The reason for this rule is founded upon the theory that if the first suit affords an ample remedy to the party claiming to be aggrieved, it would be not only unnecessary but vexatious to permit the prosecution of a second suit founded upon the same cause of action.

An action is. commenced when the complaint therein is filed. (Code Civ. Proc., sec. 350.) It is thereafter deemed to be pending until it is finally determined upon appeal (Code Civ. Proc., sec. 1049); and a plea in abatement, based upon the ground of another action pending, may be raised either by demurrer or by answer. (Code Civ. Proc., sec. 430; Tooms v. Randall, 3 Cal. 438; Coubrough v. Adams, 70 Cal. 374, [11 Pac. 634].)

While it is not definitely stated in the answer of the defendants that Hammond, the owner of the building, was made a defendant in the prior pending action to foreclose plain

20 Cal. App.-49

tiff's claim of lien; or that the defendants here were joined as defendants in that action for the purpose of procuring a personal judgment against them, it is sufficiently clear, as against a motion to strike out, that the answer of the defendants purports to plead that the purpose of the prior action was to foreclose plaintiff's lien against Hammond and against Hammond's property, and at the same time to obtain a personal judgment against the defendants named as defendants in this action for the value of the identical goods, wares, and merchandise sued for therein. The only possible purpose in making the defendants in this action defendants in the prior action would be to secure a personal judgment against them for the satisfaction of the identical debt which is made the basis of the present action. The purpose of the present action is also to secure a personal judgment against the defendants upon practically the same cause of action upon which they were joined as defendants in the previous action. In short, the causes of action and the relief sought in the two suits, insofar as the defendants here are concerned, are alleged to be substantially the same. Consequently the pendency of the prior action was a material defense in the present one, which it was proper to present by way of answer; and it follows that the trial court erred to the prejudice of the defendants in granting the plaintiff's motion to strike out such defense upon the ground of its immateriality.

The judgment appealed from is reversed and the cause remanded.

Hall, J. and Kerrigan, J., concurred.

[Civ. No. 1020. Third Appellate District.-December 31, 1912.] A. ROSSI, Plaintiff, Respondent, v. BEAULIEU VINEYARD (a Corporation), Defendant, Appellant.

APPEAL FROM JUDGMENT NEW METHOD-NOTICE OF ENTRY NOT GIVEN -REVIEW OF INSUFFICIENCY OF EVIDENCE TO SUPPORT FINDINGS.Where an appeal from the judgment is taken within six months after its entry under the new method, and the record does not show that any notice of the entry of the judgment was given to the appellant, the appellant is entitled to a review of the insufficiency of the evidence to support the findings.

ACTION FOR UNPAID PRICE OF GRAPE CRUSHING MACHINERY-CrossCOMPLAINT BY APPELLANT GUARANTY-DEFECTIVE MACHINERYDAMAGE BY LOSS OF WINE-OMISSION OF FINDING REVERSIBLE ERROR. In an action by the plaintiff herein to recover from the defendant herein the unpaid price of grape-crushing machinery sold to the defendant, in which the defendant appealing filed a cross-complaint alleging a warranty of the machinery, that it was defective and unfit for use, and had caused great damage to appellant in the loss of wine to the extent of thirty-six dollars per day for thirtyfive days, and the court wholly failed to make any finding as to such loss of wine, the omission therein is fatal to the judgment for plaintiff in said action, and is reversible error.

ID. CONSTRUCTION OF FINDINGS.-It is held that by no possible construction of the findings, can a finding awarding to the defendant reimbursement for expenses incurred in repairing the machinery, be held to furnish the remotest ground for the inference that, in awarding such reimbursement, the court took into account or included therein any damage which the defendant might have sustained by reason of the alleged loss of wine.

APPEAL from a judgment of the Superior Court of Napa County. Henry C. Gesford, Judge.

The facts are stated in the opinion of the court.

Sterling Carr, for Appellant.

John J. Mazza, C. E. Trower, and F. L. Dreher, for Respondent.

HART, J.-This is an action to recover a balance of eight hundred dollars, alleged to be due the plaintiff under a certain contract, made and entered into between the said plaintiff, carrying on business under the name of A. Rossi & Co., in the city of San Francisco, and the defendant.

The trial was had before the court without a jury, and judgment was awarded the plaintiff in the sum of $561.09 and costs of suit.

This appeal is by the defendant from the judgment under the alternative method of taking such appeals. (Code Civ. Proc., secs. 941a, 941b, 941c.)

The defendant, as indicated by the entitlement of this cause, is a corporation, engaged in the manufacture of wine in the county of Napa, this state.