by the statute, it is too late on appeal to raise the objection to the petition.571 And in the same way a failure to demur to the petition or complaint constitutes a waiver of the right to object on appeal that the pleadings do not show when the lien claim was filed,572 or that the defendant owns the property in suit.573 Upon an appeal by defendant in an action to enforce a mechanic's lien for a balance due for labor, the greater part of which had been paid for, it ap peared that during a part of the period of service the work was done by a substitute employed by plaintiff; and it was held that this was not ground for setting aside a recovery, not having been relied upon as a defense at the trial, and it not appearing but that the labor of the substitute was part of that for which payment had been made. 574

576

§ 684. An objection to a recovery in an action to enforce a mechanic's lien that the land involved, comprising a part of two city lots, was not proved not to have exceeded one acre in area, is not available on appeal if not raised in the trial court.575 And, in a suit against husband and wife to enforce a lien on the wife's land for work done under a contract with the husband, the point that the husband has an interest in the land, and that his interest at least is subject to the lien, cannot be made for the first time in the appellate court." A defendant who fails in his pleadings to disclaim all interest in the property in suit cannot contend on appeal that he has no interest.577 So, too, the defense that the property is exempt from lien because belonging to the public,578 or because it is a homestead," comes too late on appeal if not set up in the answer or distinctly claimed at the trial. In Georgia the objection that the foreclosure took place in a district in which the defendant did not reside cannot be raised on appeal where it does not appear that he raised the point by affidavit in the trial court. 580 And it is held in Washington that where defendant fails to object to the 571 Brown v. Lowell, 79 Ill. 484. 572 Skyrme v. Mining Co., 8 Nev. 219. 573 Dixon v. La Farge, 1 E. D. Smith (N. Y.) 722.

579

574 Egan v. Menard, 20 N. W. 197, 32 Minn. 273.

575 Id.

576 Barker v. Berry, 8 Mo. App. 446.

577 South Omaha Lumber Co. v. Central Inv. Co., 49 N. W. 429, 32 Neb. 529. 578 Van Denburgh v. President, etc., 66 N. Y. 1.

579 Oakley v. Van Noppen, 95 N. C. 60. 580 Cowart v. Revere, 47 Ga. 9.

court proceeding in equity, or to demand a trial by jury, he cannot, on appeal, complain that the court had no authority to render a personal judgment against him.581

Effect of Appeal.

§ 685. An appeal from a decree foreclosing a mechanic's lien suspends the right to enforce the decree by sale, but does not destroy or impair the binding efficacy of the lien.582 Under the Rhode Island practice an appeal from a final decree confirming a master's report does not vacate an interlocutory decree by which the lien was declared and the case referred to the master.583 Under a statute declaring that a party not joining in an appeal shall derive no benefit therefrom, except from the necessities of the case, an appeal by the owner, resulting in a reversal, does not affect the decree so far as it renders personal judgment against the contractor, who did not appeal. Under a statute providing that an appeal stays only so much of the proceedings under the judgment as a judge of the court below or a judge of the appellate court shall order to be so stayed, until the hearing of the appeal, it has been held that where the judg ment in a mechanic's lien case is in favor of the defendant an appeal without a staying order does not prevent the lien from being discharged.585

584

Decision on Appeal.

Where most of the plaintiff's allegations are put in issue, and the evidence is not preserved in the record, the appellate court, on reversing the decree, should not direct an absolute judgment for the appellant, but should direct that the case be tried again.586 But, where a judgment enforcing a subcontractor's alleged lien on a railroad bridge was reversed on the ground that there was no law giving such a lien, this was held tantamount to a decision that there was no cause of action, so that on remitting the record thereto. it

581 Hildebrandt v. Savage, 30 Pac. 643, 4 Wash. 524. 582 Julien Gas Light Co. v. Hurley, 11 Iowa, 520. 53 Sweet v. James, 2 R. I. 270.

584 Littell v. Miller, 36 Pac. 492, 8 Wash. 566.

55 Van Cleve v. Abbott, 3 Abb. Prac. (N. S.) 144. 586 Fox v. Kidd, 77 N. Y. 489.

590

would have been error for the court below to allow a new trial.587 The appellate court is not always shut up to the alternative of either affirming or reversing the decree of the trial court. In proper cases it may modify the decree. Thus, where a decree directed a sale of the property, instead of the defendant's interest in the property, it was held that the decree might be corrected in that respect in the supreme court. 588 And in another case a decree entered in the circuit court, in a bill to enforce a mechanic's lien, was reformed in the supreme court by reducing the amount.589 In Minnesota a decree giving a lien from a wrong date has been corrected on appeal, and it has been held in Michigan that, although a judgment rendered under an unconstitutional mechanic's lien law will be set aside in so far as the enforcement of the lien is concerned, yet, where the declaration on which the judgment is based also contains the common counts in assumpsit, it may be enforced as a personal judgment against the debtor.591 Under a statute providing that in actions to enforce mechanics' liens the court must allow as part of the costs reasonable attorney's fees in the superior and supreme courts to each claimant whose lien is established, an attorney's fee may be allowed in the supreme court on the affirmance of a judg ment foreclosing a lien.592

DIVISION V. EXECUTION AND SALE.

Execution.

§ 687. A decree foreclosing a mechanic's lien is not self-executory. A sale of the property subject to the lien is necessary in order to

587 Vanderpool v. Railroad Co., 44 Wis. 652.

588 Schmidt v. Gilson, 14 Wis. 514.

589 Wolfe v. Stone, 20 Ill. 174. In a subsequent case in this court it was said that, where a decree is rendered for too large a sum, a remittitur cannot be filed in the supreme court, but the judgment must be reversed, and the cause remanded (Beese v. Becker, 51 Ill. 82); but later decisions have allowed such remittitur in other cases, so that there seems to be no reason why the same practice should not prevail in mechanic's lien suits. See North Chicago St. R. Co. v. Wrixon, 37 N. E. 895, 150 Ill. 532.

590 Mason v. Heyward, 5 Minn. 74 (Gil. 55).

591 Koepke v. Dyer, 45 N. W. 143, 80 Mich. 311.

592 Clark v. Taylor, 27 Pac. 860, 91 Cal. 552.

enforce the decree. Usually, as we have seen, the decree directly provides for such a sale,59 but in some states an execution is required. 594 The execution in such case should be a special one,595 and should conform to the judgment in describing the property.594 Under the Illinois chancery practice a general execution can issue only for the deficiency arising after sale,597 but in Mississippi, where the proceeding is an action at law with special execution, the plaintiff may at his option abandon the lien after judgment and issue a general execution instead of a special one.598 A statute forbidding the sale of a leasehold interest on execution does not prevent its sale on foreclosure of a mechanic's lien." 599 And under the Missouri statute which provides that a mechanic's lien for an amount not exceeding $90 may be sued on before a justice of the peace, and a tran

593 See ante, §§ 665-667.

594 McCormack v. Phillips, 34 N. W. 39, 4 Dak. 506; Wilson v. Reuter, 29 lowa, 176; Richardson v. Warwick, 7 How. (Miss.) 131; Illingworth v. Miltenberger, 11 Mo. 80; Mutual Ben. Life Ins. Co. v. Rowand, 26 N. J. Eq. 389; Suydam v. Holden, 11 Abb. Prac. (N. S.) 329, note; Kendall v. McFarland, 4 Or. 292; Pentland v. Kelly, 6 Watts & S. (Pa.) 483; Lee v. Cook, 2 Wyo. 312. The Illinois practice is to have sales in mechanic's lien cases made by a master in chancery as in mortgage foreclosures; but it was said in an early case in that state that although it might be proper, in a proceeding to enforce a mechanic's lien, to order the sale to be made by a master or a commissioner, yet the same result is produced by the issuing of a special execution to the sheriff. The return of that officer would be a report of the sale, which, if not made in pursuance of law, might be set aside, and another sale ordered. Kelley v. Chapman, 13 Ill. 530. And in one New York case it was said that, in proceedings to foreclose a mechanic's lien, the sale may be either under the judgment, as in cases of mortgage foreclosure, or by execution. Suydam v. Holden,

11 Abb. Prac. (N. S.) 329, note.

595 Lenox v. Trustees of Baptist Church, 2 E. D. Smith (N. Y.) 673; Wilson v. Reuter, 29 Iowa, 176; Mutual Ben. Life Ins. Co. v. Rowand, 26 N. J. Eq. 389; Lee v. Cook, 2 Wyo. 312.

596 Wilson v. Reuter, 29 Iowa, 176. It has been held in Pennsylvania that, where the description in the execution follows that in the scire facias and in the claim of lien, the execution cannot be amended so as to describe a different lot, even though the description is erroneous. Hansen v. Byrne, 2 Wkly. Notes Cas. 96.

597 First Baptist Church of Chicago v. Andrews, 87 Ill. 172.

598 Richardson v. Warwick, 7 How. (Miss.) 131; Kirk v. Taliaferro, 8 Smedes

& M. (Miss.) 754.

599 Deatherage v. Sheidley, 50 Mo. App. 490.

script of the judgment filed with the clerk of a court of record, "who shall thereupon issue an execution as in ordinary cases," it has been held that, where the claim is filed and a judgment obtained before a justice, the clerk can issue an execution without a return of nulla bona on an execution issued by the justice, since a justice's execution would be of no use as against the realty."""

Restraining Orders.

600

§ 688. Persons interested, but who are not made parties to a decree for the enforcement of a mechanic's lien, may file a bill to restrain the sale ordered under the decree, and upon such a bill are entitled to have their interests determined by the court.801 But a statute providing that "the order of sale on all decrees for the sale of mortgaged premises shall be stayed whenever the defendant shall within 20 days after rendition of such decree file with the clerk of the court a written request for the same," applies solely to mortgage foreclosure, and does not entitle defendant, on a judg ment foreclosing a mechanic's lien and for sale of the building and premises, to a stay of execution and order of sale on mere request, without filing a bond with security.602 It is held in New Jersey that a purchaser at mechanic's lien execution sale has no right to have an execution issued in enforcement of another lien quashed on motion so as to prevent a sale under it, even though it is illegal, his proper remedy being by an action at law for wrongful levy.603 In a Pennsylvania case decided by the supreme court of that state in 1854, it appeared that the contract under which a lien was claimed stipulated that the last payment was to be made after all the workmen had been paid in full. On the trial the defendant produced as a witness a workman who testified that there was still due him a small sum, for which he had brought suit, but no special plea to that effect was filed. It was held that a judgment for the full amount sued for should stand, but that execution for the amount claimed by the witness should be stayed until the final de

GOO Illingworth v. Miltenberger, 11 Mo. 80.

601 Raymond v. Ewing, 26 Ill. 329.

602 Paine v. Putnam, 7 N. W. 336, 10 Neb. 588.

603 Murphy v. Borden, 13 Atl. 42, 49 N. J. Law, 527.