to appeals from a district to the supreme court in this territory, and that rule is therefore of questionable application, we regard the procedure upon them as indicative of a practice fitting for us to follow.

Motion granted.

WINGARD and Horт, JJ., concurred.

SEATTLE AND WALLA WALLA R. R. Co. v. Ан KOWE ET AL.

Filed July, 1880.

AN OBJECTION TO A JUDGMENT, THAT IT IS INCONSISTENT with the pleadings, may be considered by the appellate court without producing the evidence.

CERTIFICATE AS TO THE EVIDENCE INTRODUCED AT THE TRIAL.-Where a trial was partly had in the district court, with the aid of the official reporter, and then discontinued on account of the retirement of the judge, and upon a rehearing by his successor the notes of the reporter were used as correctly presenting the evidence, the only certification as to the evidence introduced at the trial required, so as to bring the cause before the supreme court, is the certificate of the judge who tried the cause.

THE MECHANICS' LIEN LAW OF 1877 was intended as a substitute for and repeal of the law of 1873. No lien under the act of 1873 survived such repeal except as the same was continued by the act of 1877.

THE TIME WITHIN WHICH A MECHANIC, NOT THE ORIGINAL CONTRACTOR, MAY FILE HIS NOTICE of lien for work done on a railroad is limited by the act of 1877 to thirty days from the completion of the work or from cessation of labor thereon. Unless such notice is filed within such time the right to a lien is lost.

APPEAL from a judgment of the third judicial court. The opinions state the facts.

McNaught Brothers, for the appellant.

Thomas Burke and Allen Brothers, for the appellees.

Upon a motion to dismiss the appeal, the following opinion was rendered:

GREENE, C. J. In this motion to dismiss, the appellees urge that what purports to be the evidence is not sufficiently well certified to fulfill the requirements of section 453 of the civil practice act and section 10 of the act creating an official short-hand reporter. We do not understand it to be questioned, but that, aside from the evidence, the clerk's certificate sufficiently informs us that we have a full transcript. It therefore becomes material to inquire, whether the issues, which the appeal presents, are such as to call for a review of evidence. Looking into the record, we discover that at least one objection to the judgment below arises from an alleged lack of support in the pleadings. Light to explore the legal sufficiency of these pleadings can not be furnished by testimony. Given, however, pleadings good in law to sustain the judgment, and it then becomes necessary to produce the proofs and decide whether they too are sufficient. Objection is made that the complaint contains no cause of action. Inspection of the clerk's certificate, transmitting the transcript, shows that we have the complaint and the judgment here. No evidence can be anything but surplusage in determining the question of jurisdiction thus presented. To compel a defendant resisting a bad complaint to bring up evidence would be folly and oppression, for the transcript is full and complete without it. He was subjected to vexation and cost enough, in being obliged to push through the lower court over proofs unreasonably arrayed against him. Entering this

court to get redress, he ought not to be compelled to transport and marshal against himself, at his own expense, the futile forces of his adversary. Several certificates in this transcript would seem to have been procured out of commendable caution, and yet to be in fact entirely superfluous. The parties had, it appears, begun to try the cause in the district court, and had proceeded so far, with the aid of the official reporter, as to have put in all their testimony and exhibits when the proceedings were interrupted by the incoming of a successor to the presiding judge. Rehearing before the new official followed as of course. Expense of reintroduction of proofs was obviated by both parties tacitly treating the notes of the reporter and the exhibits as if they correctly presented the evidence. Neither party ever questioned the propriety of hearing and determining the cause upon that basis, and accordingly thus it was heard and thus it was determined.

Getting the evidence up into this court by proper certificates seems to have been, under the circumstances, a matter of some perplexity, and it was sought to be accomplished by procuring one certificate from the retiring judge, a second from the incoming judge, and a third from the clerk, all under section 453, and still a fourth from the reporter under section 10. These certificates were all valueless except that from the incoming judge. He alone tried the case, and he alone could certify what constituted all the evidence on which he tried it.

Only when the evidence consists wholly of written testimony can it be certified by the clerk: Sec. 453; and written testimony is such only as after reduction to writing has received the assent of the witnesses: Coleman v. Lesler, 1 Wash. T. 591-593. For the reporter's certificate there could be no use, because the cause was not tried on the evidence taken down by him as upon evidence taken under the reporter's act, but rather as upon a certain mass of writing, having no longer any official solemnity or sanction for the purposes of that trial, but utilized by consent of parties for convenience' sake, to speak the facts as they would be spoken if the witnesses were recalled.

Gowan v. Petit et al., Pincus et al. v. Light, and Coleman v. Lesler have been cited by counsel to sustain this motion. Of these cases the first two differ from the one before us in not presenting any question of insufficiency of the pleadings, and the last differs from all in having, aside from the evidence, a defective clerk's certificate. Dismissal in the last case was granted upon the simple ground that the certificate brought up nothing at all. In delivering its opinion the court intimated that they were satisfied from what they saw in the record that all the evidence could not be produced before them, and that consequently it would not be likely to avail the appellant to get an amendment of the certificate. We did not at the time have fairly before us the question whether, if the pleading were objected to, we would insist on having the evidence brought up on pain of otherwise not hearing the case, and our suggestions about the impossibility of reaching the evidence must be taken as importing that the complaint was not regarded open to the exceptions urged to it. It is our present opinion that when the objection to the judgment is that it does not consist with the pleadings, then it is not necessary to bring up the evidence, but that otherwise the production of the evidence is essential.

Let the motion be denied.

HOYT and WINGARD, JJ., concurred.

Afterward the following opinion was rendered on the merits: GREENE, C. J. The appellees filed their complaint below to enforce labor liens, and after decree in their favor, are brought here on appeal. Hasty reading of their complaint might impress one that under our code system of pleading it does not sufficiently set out the fact of indebtedness, and on this ground it is assailed by the defendant. Evidently it was modeled on a common-law count of indebitatus assumpsit, and we do not doubt its allegations would have stood good, as such a count, at common law. Enough appears in it, we think, to support proof either of a special or implied assumpsit. A court might, in its discretion, upon motion to make such a complaint more definite and certain, allow the motion, especially if peculiar facts were shown rendering it likely that justice would be thereby promoted. Refusal, however, would be no ground to invoke the action of an appellate tribunal, unless there was a plain abuse of discretion. The facts, as we gather them from the pleadings and proofs, show labor of such a description as would entitle to liens, either under sections 2 and 5 of the lien law of 1873, or sections 19 and 23 of the lien law of 1877, and may be briefly stated, with sufficient fullness and precision to answer all present purposes, as follows: Heavy excavation and grading was needed to construct that part of appellants' road-bed which lies between Rentonville and Newcastle. În order to accomplish the work, the appellant, on the twenty-second day of June, 1877, entered into a contract with one L. D. Frank, whereby the latter was to move, at agreed rates, whatever earth, gravel, or stone might be encountered in the course of the undertaking. Subordinate workmen were procured by Frank under an agreement made between him and certain Chinese, not parties to this litigation, who, by the terms of the latter agreement, and in consideration of a share in the profits of his contract with appellant, agreed to and did supply him with laborers for his enterprise.

These appellees were among the laborers so supplied. Held by no special contract made with themselves, they worked by the day or halfday, and were to be paid at the rate of so much a month, according to the actual time spent in labor. Each belonged to a gang of twentyfive or thirty, superintended by an overseer or "boss," who kept in a book a tally of their time. Lack of the time-books thus kept is one of the features in this case, and either because of that lack or from want of memory in the witnesses, or from some other cause, the days on which any particular plaintiff worked is-save in three instances-involved in impenetrable obscurity. On the testimony it perhaps sufficiently appears that none of the appellees were paid for any work done in November or December, and that many of them worked continuously during both months till and including December 17th, but who any of them, save three, were, does not appear.

Really, it is impossible by any process to pronounce upon some probably meritorious claims, because we can not tell to whom by name the claims belong. During the months of November and December, however, up to and including the seventeenth day of the latter month, Hom Wah, Guom King Goi, and Lee Kee, three Chinese bosses, worked for Frank, as appears from the testimony, at the rate of thirty dollars per month, for such a number of days as to have earned respectively the sums of seventeen dollars and ninety cents, thirty-two dollars and forty cents, and twenty-five dollars and sixty cents. Some of this work of

theirs was done prior to the eighth day of November, the day on which the last mechanics' lien law was approved and went into effect, and the rest of it was done subsequently. An apportionment of the whole amount between the period before the approval of that act and the period after can not be arrived at upon the testimony, unless by applying some principle of computation. No notice of lien was filed in the auditor's office by these three, or by any others of the appellees, until the sixteenth day day of January, 1878, on which day all of them, without exception, caused to be filed in that office notices good and sufficient in form, that they claimed liens upon the railroad for their work.

Diligent search for the somewhat voluminous transcript in this case, and careful examination of the testimony, have assured us that the foregoing are all the facts material to our decision. The judge of the district court seems to have been able to find an indebtedness in a sum certain in favor of each of the appellees, but no satisfactory basis for such a finding is disclosed to us, either in the pleadings or evidence. He appears to have found further regarding all, that they worked until and including the seventeenth of December. Evidence or admission to sustain this in case of any, except the three already mentioned, is, we are convinced, entirely wanting. From this survey of the facts, we pass to inquire as to the law which must control our judgment. Under the lien act of 1873, or that of 1877, or both, the rights and remedies intended to be given are to a great degree alike, and the general aim of the two acts is for the most part, so far as they deal with similar matter, the same; and yet, on a careful comparison of the two throughout, we are thoroughly satisfied that the latter is intended as a substitute for, and not in any of its provisions as a continuation of, the former. Liens or rights accrued, and actions or proceedings commenced, under the old law, are fully kept alive by section 38 of the new, but the old law itself is repealed. No lien, right, action, or proceeding survives because of the survival of the old law, but rather only because in the destruction of the old it is rescued and revived by the new.

Every proceeding to enforce a right accrued under the older statute must conform as far as practicable to the requirements of the younger. Sixty days after the completion of the work in hand, or in case of railway labor or material, from the last day of the month in which the labor was done or material furnished, was the time granted to all persons, by the law of 1873, within which to file their lien notices. Sixty days from the completion of the work, or from cessation of labor thereon, is, under the law of 1877, allowed to the original contractor only, and every person save him has but thirty days. The lien claimants in

any case, whose labor ended on the day the old law perished, would be obliged to file their notices under the new law, and unless they were original contractors would have no more than the thirty days limited therein within which to do it. Here the labor of appellees, prior to November 8th, was not done under any continuing contract to which they were privy, and which as an entirety ran on beyond that day, and was, upon supervention of the new statute, recognized therein and preserved for completion, but it was a service from day to day, freely divisible, to which the new law put a full stop. Every shovelful of excavation afterwards was lifted under the new law.

Referring now to the character of appellees' services, and to the time when their notices were filed, we see at once that none of them were

original contractors, and none of them filed their notices within thirty days after the approval of the new law. Energy, therefore, to create or preserve a lien for work done prior to that date did not reside in the notices, and liens as to any such work must be denied an existence. Only the three overseers above named have proved their claims with sufficient certainty to entitle them to judgment for labor since that date. For determining what the fair money value of this part of the entire labor of the overseers is, we think it equitable, under all the circumstances, to resort to the method of average. The whole time overspread by their unpaid work is forty-seven days, eight of which had expired. before the new law became operative. Hom Wah, Guom King Goi, and Lee Kee are therefore entitled to liens for thirty-nine forty-sevenths of seventeen dollars and ninety cents, thirty-two dollars and forty cents, and twenty-five dollars and sixty cents respectively. Each of them will have judgment accordingly, and the judgment of the district court as to each of the other appellees will be reversed.

Let the three named appellees be allowed an attorney's fee of one hundred dollars, and their costs and disbursements in this court and the district court, and let this cause be remanded to the district court for further proceedings.

WINGARD and HoYT, JJ., concurred.

SUPREME COURT OF WYOMING.

MCLAUGHLIN v. UPTON, Assignee, etc.

Filed April, 1883.

MOTION FOR NEW TRIAL, WHEN must be MADE.-Court has no power to extend the time for making a motion for a new trial upon the oral ex parte application of the party desiring to move. Such extension can only be made upon written grounds showing how the moving party has been unavoidably detained. The provisions of the compiled laws governing this subject, sections 308 and 309, are mandatory, and unless they are observed the appellate court acquires no jurisdiction.

AN OBJECTION TO A MOTION FOR A NEW TRIAL ON THE GROUND that the same was not made in time is not waived by arguing such motion.

ERROR to the district court for Laramie county. The opinion states the facts.

C. N. Potter, for the plaintiff in error,

W. W. Corlett, for the defendant in error.

SENER, C. J. This was a civil action, brought in the district court for the first judicial district, in and for Laramie county, by Clark W. Upton, assignee of the Great Western Insurance Company, against Daniel MeLaughlin, as a stockholder in said company, to recover the balance alleged to be due and unpaid on his stock. The case was tried on the pleadings in the court below, by a jury, and a verdict rendered for the plaintiff for one thousand and eight dollars. Upon the case coming into this court, the judgment below was reversed upon the former hearing, on the ground that the action was barred by the statute of limitations, which claim was first made in this court, and the case was thereafter heard in the United States supreme court, and remanded here for hearing