#### McGLAUFLIN, Respondent, *v.*WORMSER, Appellant.

(No. 1,550.)

(Submitted April 28, 1903.

Decided May 11, 1903.)

*Mechanics’ Liens*— Statutory *Requirements*— *Compliance-Burden of Proof*— Pleading — *Complaint*— *Sufficiency-C osts*— Witn *esses*— Mileage—Appeal—R *eview*— S cope„

1. A building contract provided that all payments should be made on the certificate of the architect that payments had become due, and that final *178payment should be due when the work was completed and accepted. *Heldj*that presentation of a certificate of the architect was a condition precedent to final payment.

2. A complaint in an action to enforce a mechanic’s lien must state that the necessary architect’s certificate was gien or demanded, and, if refused, the reasons why it should have been given, or, if waived, a statement of that fact.

3. Code of Civil Procedure, Section 2131, relative to mechanics’ .liens, provides the statutory steps which must be taken for its assertion. *Held*that, in an action to enforce a mechanics’ lien, allegations showing com-plianace with Section 2131 are jurisdictional, and when denied must be proven as alleged, in order to authorize decree of foreclosure.

4. Where, in a suit to enforce a mechanic’s lien, no proof is made showing the existence of any lien, questions raised on appeal as to the extent or validity of the lien are not open to consideration.

5. Political Code, Section 4648, provides that witnesses “attending” a trial are entitled to 10 cents a mile each way from their place of residence to the place of trial; and Section 1S66 provides that the party to whom costs are awarded is entitled to the mileage of witnesses, etc. Held, that a party to whom costs were awarded was entitled to mileage for witnesses who appeared and testified, irrespective of whether they were legally subpoenaed.

6. *Quaere:*Whether Section 3304, Code of Civil Procedure, Is constitutional?

7. An order, made after judgment, refusing to sign a bill of exceptions, cannot be considered on appeal from the judgment and from an order denying a new trial.

*Appeal from District Court, Street Crass Countyj Frank Henry, Judge.*

Suit by J. P. Mcfflauflin against Andrew Wormser to enforce a meebanic’s lien. From a judgment for (plaintiff, and from an order overruling a motion for a new trial, defendant appeals.

^Reversed.

*Mr. Eugene B. Hoffman,*for Appellant.

The court erred in overruling the defendant’s motion to re-tax the costs.' (Sections 3360, 3342, 1866, Code of Civil Procedure; *Myli/ns*v. *St. L. F. S. & V. R. Co.*(Kan,), 1 Pac. 619.)

No attorney fee can be allowed as a part of the costs in a case of this bind, and if permitted by our Code, the section permitting it is unconstitutional and void in that it violates Section 6, Article III, Constitution of Montana, and Section 1, Article XTV, Amendments to the Constitution of the United' States. This question was before this court in *Wortman*v. *Klein-*
      *179
      *schmidt,*12 Mont. 316, and while tbe majority of tbe court held tbe statute constitutional, Judge DeWitt filed a strong opinion urging that tbe provision was unconstitutional. Since tbe decision in tbe *Wortman Case,*tbe question has come squarely before tbe Supreme Court of tbe United States in *Gulf G. & 8. F. B. Go.*v. *Filis,*165 U. S. 150; see, also, *Los Angelos G. M. Go.*v. *Campbell*(Oolo.), 56 Pac. 246; *Bru-bal-erx. Bennett*(Utah), 57 Pae. 170.

Tbe procuring and presenting of tbe certificate of tbe architect were conditions precedent to payments, and waiver of such condition precedent must be shown by proofs of tbe most satisfactory kind, and will not be inferred from contradictory statements of tbe jp(arties. And tbe making of payments' from time to time on tbe contract price will not constitute a waiver of such condition precedent. *(Brown*v. *Winehill*(Wash.), 28 Pac. 1037; *Wortman*v. *Kleinschmidt,*12 Mont. 316.)

Tbe supreme court of Missouri in construing a statute quite similar to our own, bas held that descriptions of the land, such as that employed by the respondent here, were too indefinite and were not a complance with tbe statute, and that therefore tber’e was no lien created. *(Maitlack*v. *Bare,*32 Mo. 262; *Williams*v. *Porter,*51 Mo«. 441; *Wright*v. *Beardsley,*69 Mo. 548; *Ransom*v. *Sheehan,*78 Mo. 668.)

*Mr. D. H. Kehoe,*and *Mr. Sidney Fox,*for Respondent.

MR. COMMISSIONER GLAYBERG

prepared tbe opinion for tbe court.

This is an action brought to foreclose a mechanics lien. At tbe trial of tbe case, after plaintiff bad introduced bis evidence, defendant moved for a nonsuit, which tbe court overruled. Judgment followed for plaintiff. Defendant made a motion for a new trial, which was overruled. He then appealed from this judgment and tbe order overruling tbe motion for a new trial.

1. Tbe action is based upon a written contract entered into *180between tbe parties for tbe construction of a dwelling bouse. It provides tbat “all payments shall be made upon tbe written certificates of tbe architect to tbe effect tbat such payments have become due.” It also provides tbat tbe different payments shall be made when ceifain work about tbe building is completed, and tbat tbe final payment shall be due “when tbe entire work is completed and accepted.” By the terms of this contract, under tbe law, tbe obtaining and presentation of a certificate of tbe architect was a condition precedent to tbe final payment on tbe contract becoming due. Therefore tbe complaint must state tbat such certificate was given or demanded, and, if refused, tbe reasons why it should have been given, or, if waived, a' statement of tbat fact. We find no allegation in tbe complaint to tbat effect. This being true, it is not sufficient to> support the judgment given by *the*court below. Tbe motion for non-suit made by tbe defendant should, have been sustained upon this ground. *(Michaelis*v. Wolf, 136 Ill. 68, 26 N. E. 384; *Hudson*v. *McCartney,*33 Wis. 331; *Hanley*v. *Walker,*79 Mich. 607, 8 L. R. A. 207; *Byrne*v. *Sisters of St. Elizabeth,*45 N. J. Law, 213; *Beharrell*v. *Quimby,*162 Mass. 571, 39 N. E. 407; *Cox*v. *McLaughlin,*63 Cal. 196; *Schmidt*v. *City of North*Yakima, 12 Wash. 121, 40 Pac. 790.)

2. But again, under tbe statutes of this state *the*plaintiff was bound to allege in bis complaint, and show to tbe satisfaction of tbe court or jury, tbat be bad complied with tbe provisions of Section 2131,. *Code*of Civil Procedure. He makes tbe following allegation in bis complaint: “E'ourth. Tbat on tbe 8th day of October, 1898, and within ninety days from tbe furnishing of such material and labor, tbe plaintiff, in order to secure and perfect a mechanic’s lien for tbe money so due him as aforesaid, duly filed with the county clerk and recorder of Sweet Grass county, Montana, an affidavit containing an itemized account of tbe amount and value of such labor and materials, with all credits and offsets, and a description of tbe land on which such bouse-was built, which was duly recorded in said county clerk and recorder’s office, a copy of which lien, affidavit *181and account is hereto attached, and made a part of this complaint.” The complaint also alleges that the property on which the house was constructed was situated in Sweet Grass county, Montana. T'o these allegations defendant interposed a general denial. Me also interposed a specific denial as to the'sufficiency of the description of the property against which the lien was claimed. These allegations and denials raised an issue necessary to be submitted to the jury and passed upon by the court or jury before any decree or judgment could be entered in the suit.

'The manner of perfecting a mechanic’s lien consists of various steps, which are purely statutory, and, while the statute is in some respects remedial in its nature, and thus far should be construed liberally, it creates a new right, and the statutory proceedings by which this new right is perfected and enforced must be strictly followed. *(Yerrick*v. *Higgins,*22 Mont. 502-510, 57 Pac. 95.) Section 2130, Code of Civil Procedure, specifies the instances in which a lien may be claimed. Section 2131 provides the method by which it may be asserted, and specifies what constitutes a lien. If no lien is thus created, nono can bo enforced. Allegations of compliance with the terms of Section 2131 are, therefore, jurisdictional in an action to enforce a lien; and such allegations, when denied, must be proven as alleged, in order to authorize a, decree of foreclosure of the lien. We have carefully searched the record, and fail to find any testimony even tending to prove the above allegations. There was, therefore, a failure to prove the existence of such facts as to give the court below jurisdiction to enter the decree appealed from. It must, therefore, be reversed.

No proof having been made of the existence of any lien, other questions raised by appellant as to the extent or validity of the lien claimed are not properly before us for consideration.

3. Inasmuch as the case must be remanded for a new trial, and as the costs of the former mistrial will abide the final result of the suit, we deem it proper to consider the error assigned *182upon tbe action of tbe court below in refusing appellant’s motion to retax costs.

Tbe only items to wbicb appellant objects are tbe items of mileage paid witnesses from Great Falls and Butte. Tbe record does not disclose wbetber these witnesses were subpoenaed, but it is clearly shown that they were present and testified at tbe trial. Appellant insists that tbe amounts paid for their mileage was not an item of costs “necessarily incurred in said action,” or properly chargeable against him. His counsel insists that under Section 3304, Code of Civil Procedure, a witness cannot be comjp.elled to attend a. court out of tbe county in wbicb be resides, unless the distance be less than thirty miles from bis residence to tbe place of trial. He also insists that the depositions of such witnesses should, have been taken under Section 3342, Code of Civil Procedure. Section 4648 of the Political Code provides that witnesses *“attending”*a trial are entitled to ten cents per mile each way from their place of residence to the place of trial. Section 1866, Code of Civil Procedure, provides: “A party to whom costs are awarded in an action is entitled to include in bis bill of costs bis necessary disbursements as follows: Tbe legal fees of witnesses, including mileage,” etc. These witnesses attended court, and testified on tbe trial, and we think plaintiff was entitled to1 include their mileage in bis statement of costs and disbursements, and that tbe court did not err in overruling tbe motion to retax tbe costs.

There may be a somewhat serious question as to tbe constitutionality of Section 3304, *supra.*Section 11, Article VIII, of our Constitution, provides that tbe process of district courts “shall extend to all parts of tbe state.” Section 3300, Code of Civil Procedure, provides, “Tbe process by which the attendance of a witness is required is by subpoena.” If the process of tbe court through a sub|p)oena extends to all parts of tbe state, it is difficult to understand bow a witness could justify refusal to obey it, even though be resided out of tbe county, and more than thirty miles from tbe place of trial. We do not, however, desire to be understood as deciding this question, because it was *183not argued before tbe court, and its decision is not necessary to tbe decision of tbis case.

4. One other error assigned in tbe brief is based upon tbe refusal of tbe court to settle and sign a certain bill of exceptions wbicb appellant bad prepared, served, and tendered to tbe court.. Tbe action of tbe court in refusing to sign tbe same was an order made after judgment, and to bring it to tbis court for review an appeal must be taken from sueli order. Tbe appeal in tbis case is only from tbe judgment and tbe order overruling tbe motion for a new trial.

We are of tbe opinion that tbe judgment and order appealed from should be reversed, tbe case remanded and a new trial order ed.

Pee, Curiam. — For tbe reasons stated in the foregoing opinion’, tbe judgment and order appealed from are reversed, the case remanded and a new trial ordered.

Me. Justice Holloway was disqualified, and took no part in tbe decision.