Feb. 1.903.] Opinion of the Court.-HADLEY, J. as he understands it, as if this court had made no order in the premises. It is urged by the relator that the recitals of the order denying the motion to strike from the petition heretofore referred to show that the respondent entertained a different view at the time of entering said order from that now expressed in his answer. Be that as it may, his answer discloses that it is not now his intention to proceed upon the theory that he is restricted by any order of this court, but that he expects now to proceed upon the theory that he has as full general powers to determine both the sufficiency of the pleadings and the facts as he would have in any other cause. If any errors have already been committed in the settlement of the pleadings based upon a wrong theory of the powers of the court in the premises, those may be corrected upon appeal if they shall not hereafter be corrected by the trial court itself. If any doubt has existed in the mind of the respondent and of the parties as to the scope and force of the order of this court heretofore mentioned, we deem it proper now to say that this court intended only to grant leave to file a petition in the lower court to vacate a judgment which had been affirmed here. A certain petition was before us, and attached to it were certain affidavits and documentary matter. We treated the affidavits merely as an evidence of good faith on the part of the petitioner, since they prima facie tended to support the allegations of the petition, and showed such a state of facts as we believed should be investigated in a proper manner under competent testimony, subject to all the usual rules which test the sufficiency of evidence. It was our understanding that the petitioner then before us desired to file a petition below containing substantially the same allegations as the one before us. But we did not expect that what was sub Opinion of the Court.-HADLEY, J. [31 Wash. the mitted to us in the nature of evidentiary matter would necessarily be treated as a part of that petition. When we said, "The prayer of the petition is therefore granted, and leave is hereby given appellant to file its said petition in the superior court, and for that court to proceed and hear the same," we did not mean that all the matter then before us was necessarily to be filed in the superior court as a petition. The order recites that " appellant, by petition now filed here, asks leave to file its petition in the superior court to vacate the judgment, ." When we granted said appellant leave to file "its said petition," we, of course, simply referred to such a one as it had asked leave to file, viz., "to vacate the judgment." It must be understood that such petitions shall be constructed according to the rules pertaining to such pleadings, and can only be supported by competent proof, the sufficiency of both the pleadings and the proof to be determined by the trial court, subject, of course, to correction of errors on appeal. The relator urges that the respondent is about to hear this matter as a separate and independent action, and that if it shall be adjudged that the judgment in the former action shall be vacated, relator will be without remedy by appeal, since this court has held that an appeal does not lie from an order vacating a judgment. In other words, it is relator's theory that the proceedings for the vacation of the judgment cannot be reviewed on appeal from the final judgment in the former action, since they are not had within that action. Under no rule can relator be deprived of his right to a review of the proceedings for the vacation of the judgment. The reason for the holding of this court that an appeal does not lie from an order vacating a judgment is that such order may be reviewed on appeal from the final judgment, and thus avoid the Feb. 1903.] Opinion of the Court.-HADLEY, J. probable necessity of more than one appeal in the same action. The rule is based upon the theory that all the proceedings are in the same action. It appears that the clerk has separately docketed the petition as though it were a complaint in an independent action, but it is filed in the same court where the judgment was rendered, and the court understands that it assails one of its judgments in a certain action. If a formal consolidation of the later proceedings with the former cause and a transfer of the files from the one to the other are not actually ordered by the court, the proceeding must nevertheless be in effect regarded as being within the former action. The procedure by petition is authorized by §§ 5153 and 5156, Bal. Code. The petition was filed within one year from the date of entry of the judgment, and this court has held that procedure by the statutory method is exclusive when the facts upon which it is based are discovered in time to take advantage of the statutory remedy. Otherwise resort may be had to a suit in equity. Chezum v. Claypool, 22 Wash. 498 (61 Pac. 157, 79 Am. St. Rep. 955); Peyton v. Peyton, 28 Wash. 278 (68 Pac. 757). The fact that § 5157, Bal. Code, requires notice for the same time as required in original actions, does not establish the proceeding as an original cause, but merely directs how notice shall be given and otherwise indicates how it shall be tried. Thus, this petition must be treated as within the original cause, and no right of appeal on the part of the relator is abridged or denied. Respondent's answer shows clearly that he intends to proceed regularly with the hearing of the matter, and there does not appear to be any cause for interference by this court at this time. The writ is denied. FULLERTON, C. J., and DUNBAR, MOUNT and ANDERS, JJ., concur. Opinion of the Court.-MOUNT, J. [31 Wash. [No. 4284. Decided February 16, 1903.] W. L. ROBINSON et al., Appellants, v. STERLINg Brooks, Respondent. Where non-lienable items are wilfully and intentionally inserted in a claim of lien along with lienable items, a court of equity will refuse to enforce the lien for any portion of the claim. SAME DISMISSAL OF ACTION. Where the equitable jurisdiction of the court had failed by reason of the bad faith of plaintiffs in attempting to enforce a lien for more than they were entitled to, it was not error for the court to dismiss the action and compel plaintiffs to pursue their remedy at law. Appeal from Superior Court, Lincoln County. Hon. CHARLES H. NEAL, Judge. Affirmed. Martin & Grant, for appellants. Myers & Warren, for respondent. The opinion of the court was delivered by MOUNT, J.-This is an action in equity to foreclose a lien upon certain wheat belonging to respondent. The complaint is in the usual form of foreclosure. The notice of lien sought to be foreclosed recites, in substance, that appellants claim a lien for $110 for cutting 110 acres of wheat at the agreed price of $1 per acre. It also recites a breach of contract by respondent, on account of which breach appellants sustained damages in the sum of $60, profits which appellants would have made had the contract been completed as agreed, and further damages in the sum of $60 by reason of appellants remaining idle for four days on account of said breach of contract, and a claim of lien for the sum of $230, less $24.50 paid Feb. 1903.] Opinion of the Court.-MOUNT, J. thereon. The complaint prayed for the sum of $205.50, for foreclosure of the lien to satisfy the same, and for the further sum of $100 attorney's fees, and $10 cost of preparing and filing the lien. When the cause came on for trial, respondent objected to the lien notice offered in evidence by appellants upon the ground that the lien notice. was void because lienable and nonlienable items were united therein. The court sustained this objection. Thereupon appellants requested the court to proceed irrespective of the lien, and to permit appellants to establish their claim against the respondent for a money judgment. Respondent objected, this objection was sustained, and the cause dismissed. From this judgment of dismissal the plaintiffs below prosecute this appeal. We think the lower court was clearly right in rejecting the lien notice. If the appellants had a right to a lien on the grain in question, the amount of the lien was for $110, less the payment of $24.50, or $85.50. Instead of filing a lien for that amount, they filed a lien for $205.50. $120 of which was for items clearly not lienable under the statute. Appellants never supposed, and do not now claim, that these items were lienable or inserted by mistake or inadvertence. They were wilfully inserted in the notice of lien, and a claim made therefor. It is manifest from the record that the lien claimants inflated their real claim for $85.50 to $205.50, and sought to foreclose the same for the full amount, besides $100 attorney's fees. The evidences of bad faith are so clear that the whole claim should fail. Powell v. Nolan, 27 Wash. 338 (67 Pac. 712). We do not think the court erred in dismissing the action. The cause was tried on the equity side of the court, and was triable without a jury. No jury had been impaneled. If the action had been brought under the contract alleged, |