1. The evidence examined, and held to be sufficient to sustain the findings of fact by the court.

2. Where the owner of a city lot, for himself and as agent for the owner of an adjoining lot, makes an entire contract for the purchase of lumber for the erection of a house upon each of said lots, without any agreement as to the quantity to be used in each house, and the same is so furnished and used, the person furnishing such lumber is entitled to a lien for the full amount due therefor, under the mechanic's lien law, upon both said lots and the improvements thereon, without making any apportionment between them; and, after part payment, a release of one lot from the lien by consent of all parties does not operate to release the remaining lot from the lien for the balance unpaid.

(Syllabus by the Court.)

Error from district court, Wyandotte county; O. L. Miller, Judge.

Action by D. J. Griest and Robert Garrett against Jerome Miexell, to enforce a mechanic's lien. There was judgment for plaintiffs, and defendant brings error. Affirmed.

Rees, Hoyt & Searles, for plaintiff in error. McGrew & Watson, for defendants in error.

GARVER, J. The errors assigned in this case and urged upon the court are on the findings of fact and conclusions of law made by the court. Counsel for plaintiff in error, at considerable length, recites the evidence introduced, and contends that it does not sustain the findings of fact. We think it is sufficient for that purpose, and, under the longestablished rule of the supreme court, we cannot weigh the testimony, and say whether, in our judgment, it does not preponderate the other way. The court found that the claim sued for was due for lumber furnished for the erection of a building on a certain lot in Kansas City, Kan.; that at the time the contract therefor was made, and the lumber furnished, one Willis Johnson owned said lot, Hester Johnson owning an adjoining lot; that Willis Johnson, for himself and as agent for Hester Johnson, made a contract with the plaintiffs to furnish certain lumber for the erection of two houses, one on each of said lots; that the lumber was delivered at said lots, and portions of it used in each house; that lumber to the value of that sued for was used in the house erected on the lot on which the lien is claimed in this action; and that a statement for the lien was filed within the statutory time after the comple tion of the building and the furnishing of the material.

The principal controversy is whether a material man is entitled to a lien where material is thus furnished for the erection of two separate houses, and it cannot be shown what particular lumber went into each. It must be admitted that in some

cases when the material is so furnished it may be very difficult for the trial court to make proper apportionment between the two houses, but it is not a difficulty which is necessarily insurmountable. In this case the court has expressly found that lumber was used, to at least the extent to which the lien was allowed, for this particular house. It is not necessary, to uphold such finding, that there be direct and positive testimony that any particular lumber was so used. Rice v. Hodge, 26 Kan. 164; McGarry v. Averill, 50 Kan. 362, 31 Pac. 1082; Shaw v. Tompson, 105 Mass. 345. It is objected by the plaintiff in error that the court was influenced in so finding by testimony admitted showing that the owner of the building and the defendant in error, when making a partial settlement of their accounts. agreed as to the amount of lumber that went into each house. It is claimed that such testimony is not competent or admissible; that a lien arises out of the furnishing of materials for and the added value which their use gives to the premises; and that no such lien can arise out of a mere contract of the parties. Conceding the correctness of this proposition, yet we think the testimony was competent as an admission of the owner of the property while he was owner and in possession, and was properly considered by the court along with the other evidence in the case. Edwards v. Derrickson, 28 N. J. Law, 39; Ballou v. Black, 17 Neb. 389, 23 N. W. 3; Whart. Ev § 1156.

Were not the defendants in error entitled to a lien on this lot and building, even without any special apportionment of the lumber between the two houses, and without any finding of the amount of lumber actually used in this one? The lumber furnished for both amounted to the sum of $603.55. The sum of $356 being paid by Hester Johnson. her lot was released from any claim of lien thereon, and the balance of $247.55 was held as a lien against the other lot. In Carr v. Hooper, 48 Kan. 253, 29 Pac. 398, it was held: "Where work and material are furnished in the erection of five buildings upon a single lot under an entire contract with the owner, a lien attaches to the lot and buildings for all the materials and labor furnished; and a release of a part of such lot by the contractor from the lien, to enable the owner to secure a loan thereon, will not defeat the lien on the other portion of the lot." The same principle will apply in this case. It is the entirety of the contract which gives effect to such rule. In principle it can make no difference that the lots are not owned by the same person, or that the buildings are erected upon a tract of land which is divided into two portions by a lot line. When the owners of two such contiguous lots join in making an entire contract for the erection of improvements upon both, they are held to pledge the credit of the whole property, and each part thereof, to the payment of the sum which they have thus jointly and severally bound themselves to pay. Under facts similai

to those of Carr v. Hooper, the supreme court of Massachusetts, in Wall v. Robinson, 115 Mass. 429, applied the same rule, holding that the labor upon each building created a lien on the whole premises. In Batchelder v. Rand, 117 Mass. 176, a similar question arose before the same court, as to the right to a mechanic's lien when the houses were on separate, but adjoining, lots; and the court held that, as the buildings were erected under an entire contract, each lot was subject to a lien for the improvement on all. To the same effect are Doolittle v. Plenz, 16 Neb. 153, 20 N. W. 116; Manufacturing Co. v. Shea, 24 Or. 40, 32 Pac. 759; Phillips v. Gilbert, 101 U. S. 721; Pennock v. Hoover, 5 Rawle, 291; Miller v. Shepard, 50 Minn. 286, 52 N. W. 894; Fullerton v. Leonard (S. D.) 52 N. W. 325; Sergeant v. Denby, 87 Va. 206, 12 S. E. 402; Williams v. Judd-Wells Co. (Iowa) 59 N. W. 271. The release of one lot from the lien with the consent of all parties concerned, would not release the remaining lot. Carr v. Hooper, supra. Under either view of the facts, therefore, the court properly held the lot in controversy subject to the lien for the amount due. Miexell purchased the property subject to this right of lien, and is bound to the same extent his grantor was.

The newly-discovered evidence presented on the motion for a new trial was merely cumulative, and it was not error for the court to refuse a new trial on that ground. City of Olathe v. Horner, 38 Kan. 312, 16 Pac. 468; Douglass v. Anthony, 45 Kan. 439, 25 Pac. 853. The judgment will be affirmed.

(1 Kan. A. 304)

CLARK ▼. CITY OF OTTAWA. (Court of Appeals of Kansas, Southern Department, E. D. July 16, 1895.)

RECORD ON APPEAL JURISDICTION-DISMISSAL.

Under section 1, c. 245, Laws 1889, the record brought to this court must affirmatively show that the court has jurisdiction, or the case will be dismissed. And when the record shows that the amount or value in controversy is less than $100, there must be incorporated in the record a certificate of the district judge showing that the case is within the exception of the statute, and a mere statement to that effect, signed by the judge, and affixed to, but forming no part of, the record, confers no jurisdiction upon this court.

(Syllabus by the Court.)

Error from district court, Franklin county; A. W. Benson, Judge.

Action by the city of Ottawa against Wil liam H. Clark. Judgment for plaintiff, and defendant brings error.

William H. Clark, in pro. per. William A. Deford, for defendant in error.

COLE, J. This is an action brought by the city of Ottawa against William H. Clark to recover a fee of $72, claimed by the city

to be due on account of said Clark having connected his premises with the sewer mains of said city. A jurisdictional question confronts us at the outset. The amount involved in this appeal is less than $100, and, unless it is one of the excepted cases, and a certificate to that effect forms part of the record, this court has no jurisdiction. Loomis v. Bass, 48 Kan. 26, 28 Pac. 1012. Attached to the papers in this case is a statement which reads as follows (omitting caption): "The above-entitled action, involving the tax or revenue law, is one belonging to the excepted classes as provided in Sec. 1, c. 245, Laws of 1889. A. W. Benson, Judge." This is not a certificate as contemplated by the statute, nor is it in any sense incorporated in the record so as to give this court jurisdiction. While it now appears affixed to the record, it is no part of it; and it further appears by the copy made upon the filing of this case in the supreme court that even this bare statement was not included in the papers then filed. For these reasons this court has no jurisdiction, and the action is dismissed. All the judges concurring.

(1 Kan. A. 501)

WORDEN v. JONES, Sheriff, et al. (Court of Appeals of Kansas, Southern Department, C. D. July 16, 1895.)

EXECUTION RESTRAINING ENFORCEMENT-CONTRIBUTION BETWEEN JOINT DEFENDANTS.

1. Where a judgment has been fully paid and satisfied, except the cost of suit, and an execution issued thereon for the collection of the original judgment and cost, upon a tender of all cost and accruing cost the party will be entitled to an injunction to restrain the sheriff from a levy and sale of property under such execution.

2. Where the petition of the plaintiff alleges the rendition of a joint judgment against three different persons, and that the same was duly assigned to D. & W., and that the same was fully paid to said assignees, except the cost of said action, and that he had tendered all the cost and accrued cost to the sheriff, he is entitled to an injunction to prevent the levy and sale of his property thereunder.

3. Where one of several parties to a joint judgment furnishes all the money to pay the same, he may compel contribution from the other parties to such judgment; and in such case, after so paying, is entitled to the benefit of the judgment to enforce collection or repayment, if, within 10 days after his payment, he files with the clerk of the court where the judgment was rendered notice of his payment and claim to contribution or repayment. Upon filing of such notice, the clerk shall make an entry thereof on the margin of the docket. Contribution may then be enforced by execution.

4. Where the plaintiff's petition alleges the rendition of a joint judgment against three several persons, and that the same was duly assigned to D. & W., and the said judgment has been fully paid to such assignees, except the costs, and alleges tender of all cost in said action, and accrued cost, and the answer of the defendants admits the rendition of judgment, the assignment to D. & W., but denies that the same was fully paid, but alleges that the same was duly assigned by the said D. & W. to another person, who was not a party to such judgment, and

that he is the owner thereof, and is proceeding to enforce the same by levy of execution and sale of property thereunder, and the plaintiff in his reply alleges that the party taking the assignment from D. & W. was the managing agent and chief officer of one of said defendants, which was a corporation, and that the money was furnished by said corporation to its officer, or there was an agreement between the corporation and its officer to repay him, and that the assignment was taken by such person in fraud of the rights of the plaintiff, and to compel him to pay the full amount of the judgment to said defendant corporation, held, that the sustaining of the demurrer to said reply was error.

(Syllabus by the Court.)

Error from district court, Reno county. Action by James Worden against J. W. Jones, sheriff, J. C. Holloway, and Davidson & Williams to enjoin the collection of a judgment. Judgment for defendants, and plaintiff brings error. Reversed.

J. W. Jones and J. A. Troutman, for plaintiff in error. Whiteside & Gleason, for defendants in error.

JOHNSON, P. J. On January 13, 1891, James Worden filed his petition with the clerk of the district court of Reno county, Kan., alleging that on the 18th day of March, 1890, J. C. Holloway obtained a judgment in said court against James Worden, Sidney E. Peck, and Swift & Co., a corporation, for the sum of $840.62, with interest at 6 per cent. from the date of judgment, and costs taxed at $88.40, and that thereafter the said Holloway assigned said judgment to his codefendants Davidson & Williams, and in April, 1890, said judgment was fully paid and satisfied, the said assignees receiving the full amount thereof, except the amount of cost. Afterwards, on the 1st day of December, 1890, an execution was issued from the district court of said county, and he attaches a copy of said execution to his petition. He further avers that he tendered to the sheriff the full amount of cost and accruing cost in said cause, but the sheriff refused to accept and receive the cost and make return of the execution, but levied the same upon Worden's real estate situated in Reno county, Kan., for the purpose of collecting the full amount of judgment, interest, and cost as not satisfied under the execution. Worden also offers to pay all cost which he has not heretofore paid in said cause, and asks that the sheriff be required to accept the same and return the execution; that he be enjoined from proceeding under said execution to sell the property of this plaintiff. The petition contains three several causes of action, setting up substantially the same state of facts in each cause for an injunction. To the petition of plaintiff the defendants on the 22d day of January, 1891, filed their answer, containing three several defenses, in which they admit that the judgment was taken as set forth in plaintiff's petition, and that Hol

loway transferred the same to Davidson & Williams; but they deny that the judgment was ever paid or satisfied, but aver that said Davidson & Williams, for good and valuable consideration, assigned the judgment to some other party than Swift & Co., to wit, one Edward F. Swift, and that the assignee holds said judgment, and that it is in full force and unsatisfied. The second count in the answer alleges substantially the same facts as the first, and avers the issuing of execution, and that the same is levied upon real estate of the plaintiff, which they are seeking to have sold in satisfaction of the judgment. The third count contains substantially the same allegation, but denies specifically that Davidson & Williams ever received the principal and interest of said judgment from Swift & Co., but avers that the same was assigned to Edward F. Swift, who still owns and controls the same, but whose assignment has not yet been placed on record. The answer is verified by Gleason, attorney for defendants. Defendants also on the same day filed motion to strike out all that part of the third count of plaintiff's petition commencing with the words "Thereafter, on March the 18th, 1890," on the third page of said count, because the matters set up in said count are immaterial to the issues in said cause, and for the second reason that it was redundant and incompetent. This motion has never been passed upon by the court. On the 30th day of January, 1891, plaintiff replied to the answer of the defendants, in which he says that if it be true, as alleged in the answer of the defendants, that Davidson & Williams, assignees of said judgment, assigned the judgment to one Edward F. Swift; that said Swift took the assignment of the judgment to himself for the sole use of the defendant Swift & Co.; that Swift is the manager and controlling official in the management of Swift & Co., whose office is in Kansas City, Kan; and that said Swift & Co. is a corporation; that if said corporation did not furnish the money to said Edward F. Swift which was turned over to Davidson & Williams for said judgment, it was understood and agreed between said corporation and Edward F. Swift that it would reimburse him and save him harmless by reason of his acts in relation to said judgment,-and avers that said acts were done at the instance and request of Swift & Co. by Edward F. Swift, as agent for defendant corporation, and were in payment of said judgment, but it was assigned to Edward F. Swift for the fraudulent purpose of controlling an execution on said judgment against this plaintiff. On the 22d day of February, 1891, the defendants filed a demurrer to the reply of plaintiff, setting forth four different causes of demurrer thereto, each of which alleges substantially that the facts stated in the reply are not sufficient to overcome the allegation in defendants' answer.