held, that this stipulation did not exclude the allowance of attor ney's fees. 503 Where a plaintiff was nonsuited, and obtained on appeal a reversal of the judgment of nonsuit, it was held that the attorney's fees were incident to the foreclosure, and plaintiff, having failed on the merits on the second trial, was not entitled to an attorney's fee on the appeal.504 A statute allowing attorney's fees for foreclosing a lien "given by this act" does not authorize the allowance of such fees in a suit thereafter begun to foreclose a lien arising under a previous act.505 It has been held in Montana that an act adding to the mechanic's lien law a section providing that wherever, in any action "brought for the purpose of foreclosing a lien or liens under the provisions of this act," plaintiff shall prevail, he shall recover as costs "a reasonable attorney fee," is not restricted in its application to the enforcement of the liens of ranchmen, herders, and others enumerated in said section, but is applicable to the enforcement of all liens under the chapter in which that section is found, including mechanics' liens.506 Under a general code provision for an extra allowance "in a difficult and extraordinary case," an extra allowance may be awarded in an action to foreclose a mechanic's lien,507 but such an allowance cannot be made when there is judgment by default." When mechanic's lien claims are consolidated, all the claimants together constitute the "prevailing party," and but one attorney's fee can be taxed, under the laws of Wisconsin. 509 It has been held in California that the allowance of $250 attorney's fees in an action to foreclose 11 mechanics' liens is reasonable,51o and that an allowance of attorney's fees in an action to enforce mechanics' liens will not be set aside as insufficient unless clearly unreasonable.511 The Kansas act authorizing the recovery of attorney's fees in an action brought by an artisan to foreclose a me

508

503 Rapp v. Gold Co., 16 Pac. 325, 74 Cal. 532. 504 McIntyre v. Trautner, 21 Pac. 15, 78 Cal. 449. 505 McCarthy v. Havis, 2 South. 819, 23 Fla. 508.

506 Wortman v. Kleinschmidt, 30 Pac. 280, 12 Mont. 316.

507 Lawson v. Reilly, 13 Civ. Proc. R. (N. Y.) 290; Horgan v. McKenzie (Com. Pl.) 17 N. Y. Supp. 174, overruling Hagan v. Society, 6 N. Y. St. Rep. 212. 508 Randolph v. Foster, 4 Abb. Prac. (N. Y.) 262.

509 Allis v. Distilling Co., 29 N. W. 543, 67 Wis. 16.

510 Jewell v. McKay, 23 Pac. 139, 82 Cal. 144.

511 Stimson Mill Co. v. Riley (Cal.) 42 Pac. 1072.

chanic's lien applies only to the trial court, and does not authorize an allowance for attorney's fees on appeal.512

DIVISION IV. APPEAL.

Right to Appeal.

§ 675. It has been held that under a statute which creates for the trial of mechanic's lien suits a summary method unlike the procedure either at law or equity, which provides no means of preserv ing the evidence, and which contains no provision of reviewing the decision, there can be no appeal from a judgment enforcing or denying a lien.513 But at present the statutes generally allow appeals in such suits. In Massachusetts a final judgment in a mechanic's lien suit is reviewable, like other judgments, by writ of review, or by ordering the judgment vacated and brought forward on the docket for trial.5 514 And it is held in Louisiana that where parties who claim liens under the law granting liens to mechanics are cited to enable them to establish their claims, and receive their pro rata of the amount deposited, and they appear and contest with the plaintiff, it matters not whether some of the parties have received a judg ment for the whole of their claims or not. An appeal will lie from the judgment.515 A refusal to strike off a lien claim is not, under the Pennsylvania practice, a final decision reviewable by certiorari.516 A statute which does not make the owner of land a necessary party to a suit to enforce a subcontractor's lien does not deprive an owner who is made a party defendant to such a suit from appealing from the decision therein.517 A plaintiff who obtains judgment in a mechanic's lien suit against the lessee of land, but not against the lessor, and who afterwards collects his judgment by execution against the lessee, thereby waives the right to prosecute an appeal from that part of the judgment denying him a lien on the rever

512 West v. Lumber Co. (Kan. Sup.) 43 Pac. 239. 513 Clark v. Raymond, 26 Mich. 415.

514 Hubon v. Bousley, 123 Mass. 368.

515 O'Hern v. Gouldy, 26 La. Ann. 371.

516 Seabrook v. Swarthmore College, 65 Pa. St. 74.

517 Hilliker v. Francisco, 65 Mo. 598.

(Ch. 16 sion. 518 In an action to enforce a mechanic's lien, a trustee under a deed of trust given to secure a note answered as trustee and owner of the note, setting up his lien. The court found that the note was in fact held and owned by a bank, which was made party defendant, and that the lien of the deed was subsequent to the mechanic's lien. It was held that under the decree the trustee had no interest in the note or deed of trust, and could not maintain an appeal based solely on the finding that the lien of the trust deed was subsequent to the mechanic's lien."

519

Jurisdiction.

520

§ 676. Jurisdiction of appellate tribunals is often limited by the nature of the action or the amount in controversy. In determining the right of a subcontractor to appeal, the amount involved is the sum due the contractor, and not the sum due the subcontractor, where the debt to the contractor is denied and the plaintiff's lien depends upon the existence of such a debt.": And a suit to enforce a mechanic's lien is not one "affecting the title to real estate or an nor does it involve a freehold," interest therein," 521 522 even where a decree of foreclosure has been entered and a sale of the property had thereunder. Under a constitutional provision giving the supreme court appellate jurisdiction in all equity cases, in certain enumerated actions at law, and in all other civil cases, and also declaring that the district court should have final appellate jurisdiction in cases arising in justices' courts, it has been held that where a suit to foreclose a mechanic's lien is brought in a justice's court and appealed to the district court an appeal lies from the district court to the supreme court.5 It has been held in Michigan that the supreme court has no jurisdiction to review proceedings to enforce a mechanic's lien under the statute, except by virtue of the special act conferring such jurisdiction; and as that act specifically provides

523

518 Knapp v. Brown, 45 N. Y. 207, 11 Abb. Prac. (N. S.) 118.

519 Press v. Woodley (Ill. Sup.) 43 N. E. 718, affirming 57 Ill. App. 123.

520 Powers v. City of Yonkers, 21 N. E. 132, 114 N. Y. 145.

521 Wheeler v. Scofield, 67 N. Y. 311; Norris v. Nesbit, 25 N. E. 377, 123 N.

Y. 650; Hall Terra Cotta Co. v. Doyle, 30 N. E. 1010, 133 N. Y. 603.

522 Pearson Lumber Co. v. Brady, 12 N. E. 875, 159 III. 37S.

23 Dickson v. Corbett, 10 Nev. 439.

only for appeals to be taken in the same manner as in ordinary chancery cases, and enacts that the powers and duties of the appellate court in relation thereto "shall be the same as are now provided by law in relation to appeals in ordinary chancery cases," it thereby excludes any other mode of review.

524

Practice on Appeal.

§ 677. Where the statute does not expressly so require, a defendant who appeals from so much of a decree as declares and enforces the lien need not give a bond conditioned for payment of the lien debt.52 525 Where the judgment in an action to foreclose a mechanic's lien is that the claim filed by plaintiff is fatally defective, and plaintiff does not appeal therefrom, he cannot, on appeal by the property owner, apply to the appellate court for an order curing his defective claim.526 And upon appeal the pleadings cannot be amended so as to change the issues.527 An assignment of errors that "the court erred in its conclusions of law, in refusing to foreclose appellant's mechanic's lien," is too general to be considered.5

Record.

528

§ 678. An appellate court will decline to hear an appeal from proceedings to enforce a mechanic's lien upon lands, in the absence of a proper authentication of what seems to have been returned and treated as the evidence. A stipulation of the solicitors for the respective parties will not cure such a defect. The action of other courts will not be reviewed, and their solemn judgments disturbed, upon records made for them by the respective counsel or attorneys in the case. 529 So affidavits filed in the cause, but not made a part of the record by certificate of the judge, cannot be considered on appeal. 580 Under a statute which provides in reference to these proceedings that "all testimony taken or used at such hearing shall be

524 Willard v. Magoon, 30 Mich. 273.

525 Arrington v. Wittenberg, 11 Nev. 283.

526 Morgan v. Taylor (Com. Pl.) 5 N. Y. Supp. 920.

527 Hondorf v. Atwater, 27 N. Y. Supp. 447, 75 Hun, 369.

528 Smith v. Huckaby, 23 S. W. 397, 4 Tex. Civ. App. 80.

529 Roberts v. Miller, 31 Mich. 73. 530 Van Pelt v. Dunford, 58 Ill. 145.

reduced to writing; and such testimony, and all affidavits and exhibits, and all orders made in the progress of the proceedings, shall be filed with the register of said court, and, together with the pleadings and the final order and decree, shall constitute the record,”the record of an appeal should contain a copy of the testimony duly certified by the register as a true copy of the testimony filed in the cause. 531 But under the Illinois practice, although a suit to enforce a mechanic's lien is of the nature of a chancery suit, yet the successful party need not preserve the evidence in the record in order to support the decree.532 Therefore, if testimony in a suit to foreclose a mechanic's lien is given orally in open court, it must be preserved by bill of exceptions or certificate of the judge, by the party who complains of the verdict.533 In a case in Wisconsin the complaint alleged performance of a contract, which the answer denied. A co-defendant, in whose favor a nonsuit was granted, set out in his answer defendant's full defense. It was held that, in determining the special findings of the jury, both answers should be considered. 534

Review.

§ 679. There are certain presumptions that prevail in appellate courts in favor of the regularity of the proceedings in the trial courts. Thus, on appeal from a judgment for plaintiff in an action to foreclose a mechanic's lien, when the complaint states and the findings show that materials furnished were sold to be used, and were used, on the building, and that the claim was assigned to plaintiff, and the statement of the case cannot be examined to see if the evidence on these points is sufficient, and the record does not show that any exceptions were taken, it will be presumed that the findings were based on sufficient evidence. 585 And where the court finds that plaintiff is entitled to a lien for work done, consisting of "certain improvements, additions, alterations, and repairs, to wit, painting and papering of walls and other portions of the basement story 531 Roberts v. Miller, 31 Mich. 73.

532 Kidder v. Aholtz, 36 Ill. 478; Jennings v. Hinkle, 81 Ill. 183; Lewis v. Rose, 82 Ill. 574.

533 Kelley v. Chapman, 13 Ill. 530; Ross v. Derr, 18 Ill. 245.

534 Moritz v. Larsen, 36 N. W. 331, 70 Wis. 569.

535 Patent Brick Co. v. Moore, 16 Pac. 890, 75 Cal. 205.