author: RAGLAND, C.

text:
    In re CHARLES J. CLARK et al., Petitioners for Public Road, v. R. E. KILBRIDE et al., Remonstrators, Appellants.
    Division One,
    April 10, 1920.
    1. PUBLIC HOAD: Matters of Record and Exception. In a proceeding to establish a public road, proceedings in the county court, such as the filing of an affidavit and bond for an appeal, the approval of the bond and the subsequent order allowing the appeal, being matters shown by the transcript of the Clerk of the County Court, are not matters of exception, but are properly abstracted as a part of the record proper.
    2. -: Appeal to Circuit Court: Section 1044». While Section 10440, Revised Statutes 1909, applies to appeals from judgments of county courts “assessing damages, or for opening, changing or vacating, any road,” and permits such appeal to be taken within ten days from the date of the rendition of the judgment appealed from, it is incomplete, in that it does not provide any method of effecting an appeal or any means of transferring the cause. It must, therefore, be read in connection with Section 4091 and other sections, which prescribe the other things necessary to be done in order that an attempted appeal may be entertained.
    3. -- — : -: Order of Allowance' After Ten Days. Where the county court on November 7th rendered judgment establishing a public road, and on the same day, but after adjournment of the court, remonstrators filed an affidavit for an appeal, and on November 17th tendered to the clerk a bond, which he approved, and on December 23rd, at an adjourned term, the court by order allowed the appeal, the appeal was taken in time. The remonstrators had in all respects complied with the applicatory statutes, and the failure to allow the appeal in proper time was not attributable to any neglect, on their part. The clerk’s transcript by reciting the adjournment of the court sufficiently shows why the appeal was not sooner allowed.
    Appeal from Knox Circuit Court. — Son. Charles D. Stewart, Judge.
    Reversed and remanded.

      F. S. McCullough for appellants.
    (1) The appeal herein, from county court to circuit court, is governed by the law with relation to appeals from justices of the peace to circuit, courts. See. 4091, R. S. 1909; Fishery. Anderson, 101 Mo. 459>; (2) The appeal was taken from an order of the county, court, opening a new public road, and affidavit and bond was filed within ten days from the date of the rendition of the judgment appealed from. Sec. 10440, R. S. 1909. (3) No formal order granting the appeal was necessary; the filing of the' affidavit and bond within ten days, with the clerk of the county court, conferred jurisdiction on the circuit court. Curtis v. Tyler, 9Ó Mo-. App. 345; Ford v. Cray, 131 Mo. App. 240; Williams v. Kirby, 169 Mo. 622; Sidwell v. Jett, 213 Mo. 601.

      L. F. Cottey for respondents.
    (1) The bill of exceptions set out in appellants’ abstract is the only record the. court can consider in this case. State ex rel. v. Staten, 268 Mo. -288. (2) The first contention of appellants is that the appeal. in this case is governed by Sec. 4091, R. S'. 1909'. That is an entirely erroneous view of the road law as to appeals in public road cases. Section 10440 provides the only] method of taldng appeals from the county court to the circuit court in public road cases. State ex rel. v. Wiethaupt, 21318 Mo. 155; State ex rel. v. MoElhinney, 246 Mo. 44-; Fitzmaurice v. Turney, 256 Mo. 181; State ex rel. v. Staten, 268 Mo. 288; Summers v. Cordell, 187! S. W. 5; Fitzgerald v. D'é Soto Sp. Road. District, 195 S. W. 696. (3) The amendment of 1909, Sec. 9419, R. S. 1899, was manifestly intended to provide a complete scheme for taking appeals from the county court in public road cases. The appellate, courts have so construed said amendment. The amendment begins by saying: ‘And provided'further, that all appeals shall be taken within ten days from the date of rendition of, the judgment appealed from. ’ ’
    It goes without saying that what the county court does can only be shown by its record. The record in this case affirmatively shows that the order of the county, court granting the appeal in this case was made forty-six days from the date of rendition of the judgment appealed from.
   RAGLAND, C.

The respondents are petitioners and the appellants remonstrators in a proceeding begun February 2,1914, in the. County Court of Knox County, for the establishing of a public road. Final judgment establishing and opening the road was rendered November 7, 1914. On the same day, but after the adjournment of the court, remonstrators filed an affidavit for an appeal. On November 17,1914, still in vacation 'of the court, they tendered to the clerk, and the clerk approved, an appeal bond which they thereupon filed. At an adjourned term, held December 23, 1914, the court made an order which, after reciting the filing of the affidavit and appeal bond and the approval of the bond by the clerk in vacation, allowed an appeal to the circuit "court and directed the cleric to make and 'certify to that court a transcript of the proceedings in the cause. The transcript was duly Med with the Cleric of the Circuit Court of Knox County, January 113!, 1915. On motion of the petitioners the appeal was dismissed by the circuit court on the ground that it was not taken in timé. From the judgment of the circuit court dismissing their appeal, the remonstrators prosecute this appeal.

Proper, I. The proceedings had in the county court relative to the appeal to the circuit court, namely, the Ming of the affidavit and bond, the approval of the bond by the clerk and the subsequent order allowing the appeal, are abstracted as record proper here, and the respondents make the point that as they were not incorporated in a bill of exceptions' they can not be considered on this appeal. But in this respondents are in error. These proceedings were shown by the transcript and papers returned by the Clerk of the County Court upon the allowance of the appeal, which upon their Ming in the circuit court, became, without the aid of a bill of exceptions, the initial part of the record of the cause in that court. [Secs. 4091, 7577 and 7579, R. S. 1909 ; Iba v. Railroad, 45 Mo. 469 ; Corbin v. Laswell, 48 Mo. App. 627.]

S?ate II. Preliminary to a consideration of whether the appeal from the judgment of the county court establishing and opening a public road was taken in time, it is necessary to first determine what statute or statutes govern such appeals. Section 4091 (R. S. 1909) of the article relating to county courts, provides:

• “In all cases of appeal from the final'determination of any case in a county court, such appeal shall be prosecuted to the appellate court in the same manner as is now provided by law for the regulation of appeals from justices of the peace to circuit courts, and when any case shall be removed into a court of appellate jurisdiction by appeal from a county court, such appellate court shall thereupon be possessed of such cause, and shall proceed to hear and determine the same anew, ■and in the same manner as if such cause had originated in such appellate court, without regarding any error, defect or informality in the proceedings of the county court. ’ ’

Section 10440 of the article dealing with the establishment and vacation of public roads is as follows:

“Appeals to the circuit court shall be allowed either party from the judgment of the county court assessing damages, or for opening, changing or vacating, any road, and upon such appeal the circuit court shall proceed to hear and determine the same anew; but no commissioner shall be appointed by the circuit court, nor shall any appeal, prior to the determination thereof in the circuit court, operate as a supersedeas of the proceedings of the county court; and provided further, that all appeals shall be taken within ten days from the date of rendition of the judgment appealed from, and the appellant shall, before such appeal is allowed, file with the clerk of the county court his appeal bond, payable to the county and to the appellee, as their interest may appear, in such sum as may be required by the county court or by-the clerk thereof in vacation, and conditioned that he or they (the appellants) will fully pay or satisfy any judgment for damages or costs that may be rendered against them in the circuit court, and will in all thing,s abide the judgment of said court.”

As appears from a casual reading, the first of these sections is a general regulation governing appeals in all eases from final judgments of county, courts, while the second applies only to appeals from the judgments of such courts “assessing damages, or for opening, changing or vacating any road.” Respondents take the position that the latter section provides a complete scheme for taking appeals from the county court in public road cases. But on its face it shows that it is not complete, in that it does not provide any method of effecting an appeal or any means for transferring the canse to the appellate conrt. When read in connection with Section 4091, it clearly appears that it was intended to be, and is, merely a limitation in the specific case with which it deals on the general right of appeal given by Section 4091. So construing the two sections, it follows that the appeal in this case is governed by Section 4091, subject to the specific limitations imposed by Section 10440. This view does not in any way conflict with the holding in State ex rel. v. Wiethaupt, 238 Mo. 155.

Section 10440 requires that all appeals shall be taken within ten days from the date of the rendition of the judgment appealed from. While the judgment in this case was rendered by, the county court on the 7th day of November and the order granting the appeal was not made by the court until December 23, 1914, the affidavit and bond were filed within the prescribed time. Section 4091 provides that appeals from judgments of the county court shall be prosecuted to the appellate court in the same manner as appeals from justices of the peace to the circuit court. In order, therefore, to determine whether the appeal in question was “taken” within ten days from the date of the judgment, recourse should be had to relevant provisions of the statutes regulating appeals from justices of the peace. Section 7574, •so far as material, is as follows: “If in any ease the justice shall allow an appeal, and certify in his certificate the cause of his failure to allow the same at the proper time, such appeal shall be sustained when it would have been competent for the court to have ordered the same to be allowed.” It does not appear that the county clerk in certifying the transcript of the proceedings to the circuit court certified the cause of the failure of the court to allow the appeal within the proper time, but, notwithstanding, the cause of such failure does appear from the transcript. By express provision of Section 10440, the appeal could not have been allowed until a bond was filed; the bond was/filed, as the statute permitted, in vacation between the regular November term and the adjourned November term, 1914. As it was filed on the last day on which an appeal should be taken and in vacation, it follows as a matter of course that the court could not allow the appeal.“at the proper time.”

In Jester v. McKinney, 47 Mo. App. 62, the affidavit and appeal bond were filed within ten days after the rendition of the judgment, but the appeal was not allowed until the twenty-third day thereafter. The justice stated in his transcript that the reason he did not allow the appeal within ten days after the judgment was rendered was, that he was not satisfied as to the sufficiency of the bond within that time. The St. Louis' Court of Appeals held that under Section 7574 the appeal should be sustained. That ruling was approved and followed by this court in Williams v. Kirby, 169 Mo. 622.

In this case the transcript certified by the county clerk shows on its face that within ten days from the date of the rendition of the judgment the appellants complied in all respects with the statutory provisions entitling them to an appeal; that the failure to allow it within the proper time was not attributable to any neglect or failure on their part; and that it would have been competent for the circuit court to have ordered the same to be allowed. Under the section of-the statutes last referred to, the appeal should have been sustained by the trial court. The judgment is reversed and the cause remanded.

Brown and Small, (7(7., concur.

PER CURIAM: — The foregoing opinion by Rag-land, C., is adopted as, the opinion of the court.

All of the judges concur, except Wioodlson, J., absent.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    WILLIAM KUHLMAN, Appellant, v. JAMES L. STEWART.
    Division One,
    April 10, 1920.
    1. EASEMENT ANB LICENSE: Prescription: Oral Agreement. An easement is an interest in land, and can only he created by grant, but the grant may be proved by prescription, which supposes a grant, but an easement cannot originate in an oral agreement, and where the evidence is positive that the claimed easement originated in parol an easement cannot be implied by prescription, however long it may have been enjoyed. A license is a privilege, may be created by parol, is revocable, and does not imply interest in the land.
    2. -: Outlet for Surface Water: Oral Agreement: Injunction. An oral agreement, between’ plaintiff and defendant’s grantor, by which plaintiff was given a privilege to connect a drainage ditch on his own land with a larger one on defendant’s, and thereby afford an outlet for surface waters as they accumulated on plaintiff’s, was a mere license, giving to plaintiff no right of perpetual drainage, but revokable by defendant, even to the extent of damming up the outlet.
    Appeal from Chariton Circuit Court. — Hon. Fred Lamb, Judge.
    Affirmed and remanded.

      John D. Taylor for appellant.
    (1) It is the uncontradicted testimony that the ditch closed by respondent was constructed across appellant’s and respondent’s land by the joint labor and expense of appellant and the former owner of respondent's land, and with the full knowledge and permission chaser for valuable consideration with an irrevocable across respondent’s land pursuant to permission given to him by the then owner and with his assistance, complainant did not become a mere licensee, but is -a purof the then owner. Since the complainant cut the ditch interest in said land. G-randstaff v. Bland, 166 Mo. App. 50. (2) “If on the faith of the license defendant had expended labor and money in the construction of the ditch and levee, and had. made the improvement on the faith of the license, he has become a purchaser for valuable consideration.” Railroad v. Railroad, 222 Mo. 484; School Dist. v. Lindsey, 47 Mo. App. 134; Sanford v. Kern, 223 Mo. 616. (2) Respondent knew of the existence of the ditch before he be'came the purchaser of the land and that it was. a continuation of the ditch across appellant’s land. The very nature and character of, the structure was in.itself sufficient notice of appellant’s interest therein, and he recognized that interest by attempting to procure his permission to close the sanie. (3) Injunction is the proper remedy, because the construction of the dam over plaintiff’s objection was an interference with the property and rights of appellant. Walther v. Gape Girardeau, 166 A. L. G. 478; Improvement Company, v. Strauch, 162! A. L. G. 86. The courts of this State will prevent the obstruction of a private way by injunction. Sultzman v. Branham, 128 A. L. 0. 701; Robick v. Stone, 137 A. L. C. 321; Sanford v. Kern, 223 Mo. 616; Grandstaff v. Bland, 16i6 Mo. App. 41. Likewise injunction will lie to prevent interference of an easement. Buck v. Wheeler, 210 Mo. 622.

      J. A. Collet for respondent.
    (1) The construction of the ditch in question under the terms of a parol contract, entered into with respondent’s grantor, did not or could not create an interest in the land. The most that can be claimed is, that such contract created a license to flow water across respondent’s land, which license was revocable at will of the owner. Cook v. Eerbert, 145 Mb. 462; Pitzman v. Boyce, 111 Mo. 387; ' Díunham v. ¿Toyce, 129 Mo. 5? Lead Co. v. White, 106 Mb. App. 232; Daudt v. Steiert, 205 S. W. 222. (2) The license created by respondent’s grantor was ipso revoked by the conveyance of the land bv him. Brnley) v. Garvin, 48 Li. R. A. 839; lioux v. Seat, 26 Mo. 178; HodgMns v. Farrington, 5 L. R. A. 209; 25 Cyc. 651. (3) Complainant has a plain, adequate and complete remedy at law, and his resort to equity is improper. Stalter v. Stalter, 151 Mo. App. 56; Gotcher v. Haefner, 107 Mo. 270; State ex rel. v. Aloe, 152 Mo. 466. (4) i Mandatory injunction is never granted unless the evidence is certain, clear and convincing. The evidence in this case is not clear and convincing that complainant has suffered any irreparable injury. Hatton v. Railroad, 253 M|o. 660; Gottenstroetter v. Kapplemann, 88 Mo. App-. 449.
   GRAVES, J.

Plaintiff (appellant) and defendant (respondent) are adjoining land-owners in Chariton County. Plaintiff had owned his land for many years, whilst defendant had owned his for some year or more. Plaintiff claims (by his petition) that by agreement with defendant’s predecessors in title, there was constructed by the two owners a joint ditch and waterway, the purpose of which was to carry off the surface water which, after heavy rains, accumulated upon their lands; that such ditch or waterway was constructed at the joint expense of the two adjoining land owners; that a part of such ditch or waterway ran across" the lands of defendant, but carried the surface water from plaintiff’s land, as well as that of defendant; that defendant put a dam across said ditch or waterway (upon defendant’s land)', so that the surface water was left to accumulate and stand upon the lands of the plaintiff; that this ditch or waterway had been continuously so used from' 1996 to date of its obstruction by defendant •in 1916; that plaintiff owned the west half of the south half of Section 14, and the defendant the east half of the same. The prayer of the petition thus concludes:

“Wherefore, the premises considered, complainant} prays that by order and judgment of this court .defendant be directed and required to forthwith remove the dam or lgvy from the said ditch and to remove the earth and obstruction thrown into said ditch aforesaid, and restore the same to its former state of usefulness, and that by the order and judgment of this court he be forever restrained and prohibited from closing, obstructing and destroying* the said ditch or impairing its utility, and for such other relief in law and equity as may be just and proper.”

Upon a trial in the circuit court there was a finding and judgment for the plaintiff, by the force of which an easement for the passage of this surface water over the land of defendant was declared. Later, upon motion of defendant, this judgment was set aside, ancH a new trial granted. From the orden granting a new trial the plaintiff appealed to the Kansas City Court of Appeals, which court has transferred the case here as one involving title to real estate. It should also be added that the judgment granted a mandatory injunction requiring the defendant to remove his dam across thé ditch, and that he was enjoined from further interrupting the flow of the surface water through such ditch. This is not the language, but the substance of the judgment, which plaintiff seeks by this appeal to have reinstated, without further trial. Pertinent portion of the evidence will be left to the opinion.

I. Going to the evidence in the case we find reference to several ditches, all of which are shown upon the attached plat, which we have reduced in size, from the one used in evidence.

To get the pertinent facts plainly in the mind reference to this plat is necessary. The land north of the Wabash Railroad, as shown on the plat, is broken and hilly. The lands of plaintiff and defendants are low and level, and upon them would’ accumulate the waters coming from the hills to the north. In the southwest corner of Stewart’s land was a slight elevation. On Kuhlman’s land there was what is called a “swale” or a depression in the land (lower than that upon either side), but with no well defined banks. The swale extended from Kuhlman’s land into Stewart’s land, and would be to the north and east of this slight elevation in the southwest corner of Stewart’s land. This swale was along what is marked in the plat as the “KuhlmanPrice Ditch. ’ ’ It was not the full length of this marked ditch, but ran up some distance in Kuhliaan’s land, and into the southwest corner of Stewart’s land. In this swale or depressed land water would accumulate, and stand, unless given outlet to or across the public road. So there is testimony bearing upon this particular ditch.

Afterward there was constructed a ditch marked “County Drainage Ditch.” Next in order of time came the “Kuhlman-Kayser Ditch,” which began a few feet south of the ‘County Drainage Ditch” and connected with the old “Kuhlman-Price Ditch.”' Next in order of time is the “New Stewart Ditch,” which defendant constructed upon his own land shortly before this lawsuit began. This ditch runs from the little high land in the southwest corner of Stewart’s land, to the “County Drainage Ditch’) to the north, and at the point where it crosses what is marked as the “Kuhlman-Price Ditch” is where the dam of that ditch occurred, of which complaint is made in the petition. From this it will be seen thait the dam would cause surface water to remain in this swale upon plaintiff’s land, and perhaps to keep> it backed up there more than before the construction of the dam. .This dam is but a part of the construction of the Stewart ditch and is upon the Stewart land.

With this general outline of the situation we can more intelligently take up the other facts, and apply the law thereto.

II. The petition charges that more than tw;enty years prior to the suit the two tracts of land were respectively owned by Caroline Kuhlman and the heirs of J. W. Price. Caroline Kuhlman owned the land now owned by the plaintiff, and the Price heirs the Tand now owned by defendant. Such petition further charges that there was an agreement between Caroline Kuhlman and the Price heirs to construct, through this swale, as a part of the ditch, what is designated as the ‘‘Kuhlman-Price Ditch,” and the evidence bearing thereon is a matter for disposition here. We take the evidence upon the two ditches separately for reasons that are obvious.

As to the first ditch the evidence shows that it was partially constructed some thirty years ago. We ' say partially constructed, because the water, was collected in this swale or low ground, and got from there as best it could, until later a .spaded ditch was cut from the Stewart land into a ditch on the north side of the public road. This seems to have been done about the time that the “Kuhlman-Kayser Ditch” was m.adé, and the man who dug this latter ditch says that it was< made in' 1908 or 19091 — not earlier than 1908. So this evidence tends to show that there was no practical ditch there until the spading out of this opening from that part of the swale' on Stewart’s land to the public road ditch, and that this was of no great benefit until within the last few years, when the roadway was elevated, and the road ditch wag deepened. Since this time the water from the swale on both the Kuhlman and Stewart lands would drain out fairly well. But this has been of very recent years.

The vital part of the testimony is that this ditch was constructed under an' oral agreement between Caroline Kuhlman and Elmer Price, one óf the Price heirs. In other words, it had its origin in an oral agreement. "Where the proof shows a clear oral agreement (as here) the question is, can there he created an easement? This oral agreement was merely to construct a ditch. It was not an oral agreement to convey by proper grant an easement over the Price land, now the Stewart lands. An easement can only be created by grant. It is true that the existence of the grant may be proved in several different ways, one of which is prescription, which presupposes a grant. In our judgment the evidence in this case goes no further than to show a license. In 9 R. C. ¡D. p. 744, it is said:

“The difference between an easement and a license is that the former implies an interest in land, while the latter does not. An easement must be created by deed or prescription, while a license may be by parol. The former is a permanent interest in the realty, while the latter is a personal privilege to do some act or series of acts upon the land of another without possessing any estate therein, and is generally revocable at the will of the owner of the land in which it is to be enjoyed, by the death of the licensor, or by his conveyance of the lands to another, or by whatever would deprive him of doing the acts in question or giving permission to others to do them.”

The same authority at page 745 says:

“An easement, being an interest in land, can be created only by grant, the existence of which may be established by the production of a deed expressly declaring it, or may be inferred, by construction, from the terms and effect of an existing deed, or evidence of the grant may be derived from its having been so long enjoyed as to be regarded as proof that a grant was originally made, though no deed is produced which contains it. In other words, there are three ways in which an easement may be created — first, by express grant; second, by implication; third, "by prescription. The rule that the grant of an easement cannot exist in parol is well established in all jurisdictions. It is sometimes stated that easements created by prescription, by estoppel, and by necessity, are exceptions to this rule, but these modes in their origin resolve -themselves into one. The distinction between them relates more -to the mode of proof than to the source of the title. They are all derived from voluntary grant. Prescription presupposes and is evidence of a previous grant. Necessity is only a circumstance resorted to for the purpose of showing the intention of the parties and raising an implication of a grant, and the same is true of estoppel. • Since interests in real estate may pass by will, a will may operate to create an easement.”

So that in this case proof of thirty years’ continuous use (were the substantial proof of this character) might authorize the finding that there was a proper grant, but for the express and positive evidence that the whole thing rests upon a parol agreement between Caroline Kuhlman and Elmer Price, one of the Price heirs. The proof of the express parol agreement destroys all presumption of a grant. In other words the proof shows that this ditch had its origin in an oral agreement, rather than in a grant, and with this direct proof in the record, there is no room for the presumption of a grant, which is the (foundation of the doctrine of prescription, in such cases'. The oral agreement proven in this case shows a license rather than an easement. In Division two of this court we had up a very similar state of facts, and in this case, Daudt v. Steiert, 205 S. W. l. c. 226, it was said:

“Mere proof that the ditch was made and connected by the parties affords no sufficient basis for equitable relief such as has been granted here. If, as the evidence shows, in 1895, Runge constructed, the ditch along his east line, and Daudt constructed the ditch along his north line, and connected it with the Runge ditch, so as to drain the surface water from his land, a basis for a decree in equity would not have been authorized investing Daudt 'with a perpetual right of drainage over Runge’s land. While such evidence might show the existence of a riglgt in the nature of a license to Daudt to drain his surface water through Runge’s ditch, it would constitute no more than a license, revocable by Runge. [Dunham v. Joyce, 129 Mo. 9, 31 S. W. 337; Pitzman v. Boyce, 111 Mo. 392, 19 S. W. 1104, 33 Am. St. Rep. 536; Desloge v. Pearce, 38 Mo. loc. cit. 599.] ”

But in the case at bar it is shown that there was no substantial, effective ditch, until within the past two or three years. That theretofore the water accumulated in this swale or depressed portion of the ground, and found its way' out in anyway that it could, and what did not flow out, remained in and got out by the slow process of evaporation. It is true that within the last few years (after the roadway of the public road was elevated, and after the road drain was deepened) much of this accumulated water found its way out of this swale and down toward the east through the public road drain. Prior to that time its outlet from the swale was an imperfect and uncertain one. At the earlier period it crossed the road when there was ’ enough in the swale to force it to do so. But aside from all this, we don’t think the evidence in this case measures up to the standard to show an easement by prescription.

III. What we have' said of the “Kuhlman-Price Ditch” applies with equal force to the “Kuhlman-Kayser Ditch.” The contract for this rests in parol. It was, under the evidence, made between Kayser, as agent for the then owner of the present Stewart lands, and Kuhknan. It was a contract to dig a ditch and divide the expenses. This was in 1908 or 1909!, by the most reliable evidence. No time has elapsed for prescriptive rights, if such were really in the case. Upon the whole there was no error upon the part of the circuit court, when it granted this new trial, and its order will be and is affirmed and the cause remanded.

All concur except Wood&on, Jr, absent.


text:
    CLAUDE V. MILLS; M. CORSON GILLHAM, Petitioner for Attorney’s Fee, v. METROPOLITAN STREET RAILWAY COMPANY; R. J. DUNHAM and FORD S. HARVEY, Receivers, Appellants.
    Division One,
    April 10, 1920.
    1. ATTORNEY’S LIEN: Right and Remedy: Procedure. The Attorney’s Lien Statute in giving an attorney a lien on his client’s cause of action, being constitutional, created a right that did not exist at common law, but failed to provide a remedy, and therefore that the right may not perish the courts devise for its enforcement modes of procedure conformable to those general rules established in our system of jurisprudence for the security of private rights, the mode to be pursued depending somewhat on the facts of each particular case.
    2. -: — : -: Action at Law or Suit in Equity. The statute-gives an attorney, employed on a percentage basis, a lien on the cause of action of his client, who nevertheless has the absolute right to settle it, in good faith, regardless of the attorney’s wishes; and if the settlement is made without fraud or collusion, the cause of action is thereby wiped out, and if the attorney’s lien has been disregarded, he is remitted to an independent action against defendant, which may be an independent action at law for the value of the lien of which he has been deprived, or, possibly, if he so elect, a suit in equity to foreclose his lien.
    . 3. -: Action at Law: Due Process. Notwithstanding the attorney, in order to recover his fee according to contract, proceeded by filing his motion in the case which had been settled, entitling it as that case had been, and notwithstanding the motion asked the court to set aside the entry of dismissal and reinstate the case on the docket and open up the case “for the purpose of this motion,’: yet if the motion alleged every fact essential for an independent cause of action against defendant in an action at law for the enforcement of bis lien and prayed judgment for the value thereof, and defendant voluntarily appeared and answered that he was never plaintiff’s attorney in the case, and charged a conspiracy between him and plaintiff to defraud defendant, to which he replied by general denial, and the matter was submitted to the court, evidence was received and argument had, the proceeding was in general conformity to the rules and usages governing the trial of civil actions at law, and was due process of law, since the real purpose of the motion was not to revive a dead lawsuit, but to establish a monetary judgment for the value of his statutory lien.
    4. -:'-: Quantum Meruit. The existence, character and identity of an attorney’s lien for services rendered on a percentage basis are derived from his contract of employment; and when he is wrongfully discharged, or the cause of action is settled by his client without his consent, his right to recover depends upon an establishment of the contract, and the suit by the pleadings being one on an express contract he cannot recover as on quantum meruit for the value of his services rendered, and a judgment for the reasonable value of the services, as if rendered under an implied contract, is not responsive to a cause of action based on an express contract.
    5. -: -: Entitling Suit: General Prayer. The attorney’s remedy for a settlement by- defendant with his client, in disregard of his lien and contract of employment, is an independent suit against the defendant, for the value of his statutory lien, and it is not proper to undertake to establish it by filing a motion in the case settled. And, if an action at law, a prayer for general relief is inappropriate and anomalous, but not substantive.
    Appeal from Jackson Circuit Court. — Eon. T. J. Seehorn, Judge.
    Reversed and remanded.

      Richard J. Higgins and Roscoe P. Conkling for appellants.
    (1) The court erred in setting aside the judgment entered of record on October 17, 1917. (a) This was an action at law, and after the final judgment of October 17, 1917, the court was without authority to<- set aside the judgment for the purpose of permitting the amendment of the motion, the introduction of further evidence, and then to enter a new judgment for the petitioner. The judgment of October 17, 1917, was a final judgment in a law case. The court had authority only to sustain petitioner’s motion for a new trial, or to let the judgment of October 17, 1917, stand. The court did neither of these two things. Akins v. Hicks, 109 Mio. App. 95 ; State ex rel. v. Horton, 161 Mo. 671; Patrick v. Abeles, 27 Mo. 184; State ex rel. v. Evans, 176 Mo. 310; Walker’s Admrs. v. Walker, 25 Mo-. 367; Shell v. Mo. Pao. Railroad, 132 Mo. App-. 528; Miller v. Railroad, 162 Mo-. 433; Wait v. Ry. Co., 204 Mo. 491; R. S. 190-9, sec. 2022-. (h) Respondent’s own testimony conclusively shows, the jury found, the trial court approved, and the trial court stil approves, that the respondent abandoned the cause of action. By his own actions respondent is estopped from asserting of claiming any lien. Mfg. Co. v. Sharpies Co., 98 Mo. A,pp. 207; Miller v. Chinn, 203 S-. W. 212; Mineral Water C'o. v. Fishman, 127 Mo. App-. 211; Chouteau v. Iron Works, 94 Mo. 395; Seligman v. Rogers, 113 Mo. 642; Palais du Costume Co. v. Beach, 114 Mo. App. 462; Blanton v. King, 73 Mo. App. 148. (2) The court erred in permitting respondent, after trial, and after judgment for these appellants, to amend his motion by adding a prayer for general relief, (a) There was no warrant or authority in law for such amendment at that time. See. 1851, R. S. 1909. (h) The amendment amounted to a departure from the original cause of action declared upon. Scoville v. Giassner, 79 Mo. 449; P'ruitt v. Warren, 71 Mo. App. 84; Weissenfals v. Cable, 208 Mo-. 515; St. L. v. Wright, 210 Mo. 501; Carter v. Dilley, 167 Mo. 564; Lumpldn v. Collier, 69 Mo-. 170'. '(3) The court erred, in permitting any evidence of the value of the services of respondent, because respondent declared upon, a contract, and the motion was founded upon the attorney’s lien statute. Recovery cannot be had upon the quantum meruit. White v. Wright, 16! Mo. App. 551; Fox v. Phllman Co., 10 Mo. App-. 127; Houck v. Bridwell, 28 Mo. App. 648; Stanley v. Whitlow, 181 Mo,. App. 461; Shoemaker v. Johnson, 200 Mo. App. 2091 (4) The court had no jurisdiction. There was no money judgment entered. against appellants in the original cause. The final judgment in the original cause was a judgment of dismissal. There was no money judgment in the original 'cause to which the lien, if established in this proceeding, could attach itself. This proceeding, to establish a lien, should have been an independent action and not a proceeding by motion in the original cause. Wait v. Ry. Co., 204 Mo. 501; 0'’Connor v. Transit Co., 198 Mo. 643; Taylor v. Transit Co., 198 Mo.- 730. (5) The court erred in setting aside the judgment rendered October 17, 1916, in permitting petitioner to amend his motion, in refusing to' recall the jury sworn and impaneled in the cause on October 16, 1917, in permitting petitioner to introduce new and further evidence, thereby depriving these appellants of their property without due process of law,' in violation of Section 30, Article II, of the Constitution of Missouri. Jones v. Yore, 142 Mo. 44; State ex inf. v. Shepherd, 177 Mo. 205'.

      Hutton, Davis, Nou-rse <3 Bell for respondent.
    (1) The court did not err in setting aside its judgment of'October 17th, 1917, on its own motion, being the same term at which the judgment was entered. Modern Woodmen v. Angle, 127 Mo. App. 106; Buck v. Buck, 267 Mo. 663. (2) The statutes allowing attorney’s liens made no provision for a mode of procedure but our appellate courts have given relief and have provided that the attorneys ought to be deprived of his fee could file a motion in clients ease asking that fees be taxed against defendant or that he can file an independent suit. Taylor v. Transit Co., 198 Mo. 1. c. 730 '; Stevens v. Met. St.’By. Co., 157 Mo. App. 656; Curtis v. Met. St. Ry. Co., 118 Mo. App. 355; Nicola v. American Car & Foundry Co., 185 Mo. App. 2-85; Wait v. Railroad Co., 204 Mo. 503. (3) It was not obligatory on the trial court to hear evidence on the reasonable services of Gillham and it was not obligatory for the trial court to adopt the evidence that it did hear. The trial court did not grant a new trial but offered to do so if defendants requested it. Respondent respectfully submits that appellants were- not deprived of any of their constitutional rights and moves that their appeal be dismissed.
   RAGLAND, C.

This is an action based on the Attorney’s Lien Statute. M. 0. Gillham, hereinafter designated the plaintiff, is, and for a number of years has been, a member of the Kansas City Bar, actively engaged in the practice of law. Some time prior to February 8,1916, one Mills sustained personal injury through the negligence of defendants while a passenger on their cars. On the last named date he employed plaintiff as his attorney to commence and prosecute a suit for the récovery of his damages. By the contract of employment it was agreed between plaintiff and Mills that plaintiff should have for his services twenty per cent of any judgement, settlement or compromise obtained or effected, disposing of Mills cause of action. Pursuant to his employment, plaintiff prepared and, on February 10, .1916, filed with the Clerk of the Circuit Court for Jackson County, a petition by which an action was commencéd by Mills against these defendants for the recovery of $30,000 as the damages sustained by him on account of their negligent acts. Later plaintiff appeared in the cause for Mills, the plaintiff therein, as his attorney, at the hearings on defendants’ demurrer to the petition and on their motion to make the same definte and certain, as well as at the talcing of depositions on the part of defendants. He also spent considerable time in the preparation of the case for trial. There is no. suggestion of a lack of either diligence or skill in paintiff’s conduct of the case. But, apparently, some outside influence operating on the mind of Mills led him to believe that he had made a grievous mistake in not employing a certain other attorney He thereupon employed the other, and at the latter’s suggestion Mills wrote plaintiff a letter, in which he in effect stated that at the time he talked to plaintiff (at the hospital) with reference to employing him he, Mills, was not in a condition mentally to make a contract, and that in any event plaintiff was employed merely to ¡filie the petition and that he must take no further action, as other counsel had been retained to try the case. Plaintiff construed this letter to mean the Mills had secured another lawyer to conduct the trial of the cause in court and not as terminating his employement. He continued to accept service of notice to take depositions served by opposing counsel and otherwise continued in active charge of the case. This fact coming to the attention of Mills, on July 81, 1916, he wrote plaintiff a letter, peremptorily directing him to cease meddling with the case and threatening to take the matter before the local bar association, if he did not do so. Plaintiff then awoke to a realization that he had been replaced by another attorney and did nothing further in the case. Later Mills,through the attorney last employed by him, and without the knowledge of plaintiff, effected a settlement of his case, by which he received the sum of $5500, and on November 24,1916, a stipulation was filed in the cause by which it was agreed that the same should be dismissed at defendant’s cost. Judgment was entered in accordance with the stipulation. Just a few days be: fore the settlement was effected, Mills’s attorney then in charge of his case wrote plaintiff offering the latter $50 in full compensation for his services therein. Plaintiff not replying, the offer was withdrawn and the settlement proceeded to a consummation without further effort on the part of anyone connected with the case to secure a release of plaintiff’s lien on the cause of action, if he had one.

On December 20, 1916, plaintiff filed with the Clerk of the Circuit Court for Jackson County a paper, which he denominated a motion, and which, by its caption and prayer, purported to be in the case of Claude V. Mills, plaintiff, v. The Metropolitan Street Railway Co., R. J. Dunham and Ford Harvey, Receivers, defendants. In this paper plaintiff styled himself a'“petitioner.” But whatever may be its proper characterization, it is alleged in this pleading that prior to February 8,1916, one Claude V. Mills, having theretofore sustained injuries through the negligence of defendants while a passenger on their cars, and having a subsisting cause of action for damages for such injuries, on that date employed plaintiff (“your petitioner”) as an attorney-at-law to prosecute a suit for the recovery thereof; that it was agreed between plaintiff and said Mills that for bis services in that bebalf plaintiff should have twenty per cent of whatever amount was realized on the cause of action, whether by judgment, compromise or settlement; that plaintiff, pursuant to his employment, filed a petition for Mills, thereby commencing suit on the latter’s cause of action against the railway company and its receivers; that, while he was engaged in. matters preliminary to a trial of the cause, Mills, without plaintiff ’s knowledge or consent, settled the case for $5600 and entered into an agreement with defendants therein for a dismissal of the cause, which was accordingly done; that the defendants in paying over to Mills $5500 in full settlement of the cause of action, without plaintiff’s knowledge or consent, deprived plaintiff of his fee of twenty per cent thereof “and of his lien upon said cause of action allowed by the statutes of Missouri. ” The prayer is as follows:

“Now, therefore, comes your petitioner and moves the court to set aside the entry of dismissal entered in this cause on the 24th day of November,1916, and to open and reinstate said cause upon the docket of said court, for the purposes of this motion, for the reasons hereinbefore stated, and to grant your petitioner judgment against defendants for twenty per cent of said amount as paid plaintiff by defendants for settlement and compromise of this cause, or eleven hundred dollars, together with interest at six per cent from November 24, 3916.”

The record does not disclose whether, upon the filing of this paper, a summons issued or whether any notice thereof was served upon the defendants. In any. event, they appeared at the same term (November Term, 1916) of the court and filed an answer in which it is alleged that plaintiff was never employed by Mills, and that he was never at any time Mills’s attorney in the case which they settled with Mills. It was further averred in the answer that to grant plaintiff the relief prayed by him would be to deprive defendants of their property without due process of law in violation of both State and Federal constitutions, and would deprive defendants of the right of trial by jury as guaranteed byi the Constitution of the State of Missouri. At the September Term, 1917, of the court the defendants filed an amended answer. In this pleading they omitted any averment that the proceeding would deprive them of the right of trial by jury. On the contrary they alleg’ed that the action was an, equitable one, and, after charging Mills, Gillham and others with having entered into a conspiracy to extort more money from them, asked that, in the event plaintiff, Gillham, was given a judgment against them, they be awarded a judgment for the same amount against Mills. In other respects the amended answer was similar to the one first filed. Plaintiff filed a general denial by way of reply.

The cause in due course came to trial October'29th, during the September term, 1917. Acting apparently on the suggestion in defendants’ amended answer, and without protest from either party so far as the record discloses, the court' proceeded with the trial of the cause as though it were a suit in equity. However, it concluded to take the opinion of a jury on certain specific questions of fact therein' involved and a jury was accordingly impaneled. Evidence pro and con was heard at length on the issues of whether plaintiff had been employed by Mills and whether plaintiff, by his acts and conduct after the receipt of Mills’s letters, abandoned the case and relinquished his claim of employment therein. Special issues were framed and submitted to the jury. Among others, more' or less collateral to this one, they found that Mills employed plaintiff to bring the suit in question for a contingent fee of twenty per cent of whatever was realized by judgment or settlement. This- specific question was also submitted to them:

“Did the petitioner, Gillham, by his acts, abandon the cause of action and cease to act therein?

“By ‘abandon,’ as used herein, is meant to give up a thing absolutely. In this connection, you are instructed that abandonment need not be proved directly, bnt may be inferred by acts of commission or omission which necessarily point to actual abandonment.”

To which the. jury answered, “Yes.” The court approved and adopted the findings of the jury and entered judgment thereon for defendants.

Later during the same term when counsel for both parties were present, the court announced that, if the “petitioner” desired it, he would set aside the judgment and permit the-“petitioner” to introduce evidence of the reasonable value of his services. The plaintiff indicated that he would avail himself of the offer. Thereupon, the court set aside the judgment of its own motion. At its further suggestion the plaintiff amended his motion or petition by adding a prayer for general relief. Defendants obtained leave to amend their answer, which they did by addenda. The added matter was principally a vehement protest against the conversion of the cause of action from one on express contract to one on quantum meruit, averring that the court’s action in permitting the same to be done was not only a departure, but deprived defendants of their property without due process of law and deprived them, of their constitutional right to a jury trial. After the filing of this second amended answer, the court offered to call another jury to try all the issues. The defendants objected to calling another jury.; they claimed that they wanted the one recalled that had rendered the advisory verdict and been discharged. This the court refused to do. After hearing additional evidence as to the reasonable value of plaintiff’s services, the court again approved and adopted the findings of the jury, assessed plaintiff’s • damages at $750 and rendered-judgment in his favor and against defendants for that sum. From that judgment defendants appeal.

The principal grounds on which appellants rely for a reversal are: (1) that by the proceeding and the judgment therein they are deprived of their property without due process of law in violation of their- constitutional rights', and included in this is their contention that they were denied the right to a jury trial, and (2) that the judgment, under the pleadings and on the facts found by the court, was unauthorized.

Procedure I. The constitutionality of the Attorney’s Lien Statute itself, on the grounds presented, is no longer an open question, but has passed into the realm of things adjudged. [Whitecotton v. Railroad, 250 Mo. 624, 628.] The only question that may be considered, ** ± * j * therefore, with reference to the infringement of appellants’ constitutional lights in the respect contended for by -them, is whether the mode of procedure followed by the trial court measured up to the requirements of ‘ due process of law. ’ ’’ Plaintiff in his motion or petition does not allege the service of a notice on defendant- as provided by Section 965, Revised Statutes 1909, so that his right of recovery, if any, against defendants'in this proceeding rests exclusively on Section 964, and whatever may be said hereafter in the course of this opinion with respect to the statute will have specific reference to the last named section. The statute in giving an attorney a lien on his client’s cause of action created a right that did not exist at common law, but though creating a new right, it fails to provide a remedy. [Young v. Renshaw, 102 Mo. App. 173.] Under such circumstances, that the right might not perish for. the want of a remedy, the courts have been assiduous in devising for its enforcement modes of procedure conformable to “those general rules established in our system of jurisprudence _f or the security of prL vate rights.” [Wait v. Railroad, 204 Mo. 491.] The kind of procedure sanctioned depends somewhat on the facts of- each particular case. If the cause of action on which the attorney has a lien has been merged into a judgment, certain proceedings for enforcing the lien are allowable; if the cause of action is settled or compromised before judgment, certain others are 'followed-In the instant case a settlement was effected by the client before judgment, and we are not concerned, therefore, as to the proper procedure in cases involving" a different situation.

There are precedents for holding that, where a settlement is eollusively made for the purpose of cheating the attorney, he may disregard the settlement and continue the prosecution of the cause of action in the client’s name, and, if the facts permit, recover to the extent of his lien. In such case the suit continues to be on the client’s cause of action; it is not a mere summary proceeding therein by motion to assess attorney’s fees. In the absence of fraud or collusion, however, a settlement made by the client extinguishes the cause of action, and, being wiped out, it ceases to be the subject of prosecution. This is so because the cause of action is the property of the client and not the attorney, and he has an absolute right to make such settlement or adjustment of it, in good faith, as he thinks best regardless of- the wishes of his attorney. [Curtis v. Railway, 118 Mo. App. 341; Wait v. Railroad, supra.] The lien is subject to this right, and, if on a percentage basis, is liquidated by the • exercise thereof. After ail honest settlement made by the client, his cause of action being thereby determined, the attorney, if his lien has been disregarded, is of necessity remitted to an independent action against the defendants. [Yonge v. Transit Co., 109 Mo. App. 235, 246.] S'uch independent action may be one at law for the value of the lien of which he is deforced, corresponding to the common law action of trespass on the case (Taylor v. Transit Co., 198 Mo. 715, 730); or possibly, if he so elected, the attorney may instead bring a suit in equity to foreclose his lien. In Fischer-Hanson v. Railroad, 173 N. Y. 492, l. c. 502, a leading case construing a statute very similar to ours, it is said: •

“A lien upon a claim or a cause of action follows the fund created by a settlement of the claim, which there^ upon ceases to exist; It attaches to the -amount agreed upon in settlement. the instant that the agreement is made, and if the defendant pays over to the client-without providing for the lien of the attorney, he violates the rights of the latter and must stand the consequences. We think that the plaintiff had a lien upon the sum which the defendant agreed to pay to extinguish the cause of action, and that the law will not permit it to saythat it has nothing in its hands to satisfy it. The lien was not affected by the adjustment, but leaped from the extinguished cause of action to the amount agreed upon in settlement.

“The remedy provided by the Code by means of a petition is not exclusive, brut cumulative, for a court of equity has always had power to ascertain and enforce liens. We have endeavored to establish that the plaintiff’s lien was tranferred from the cause of action to the fund into which the claim was converted by the action of the parties, and hence within familiar principles a court of equity has power to enforce that lien in an action brought for that purpose. Actions to establish and enforce liens are among those most familiar to equity jurisprudence. Even if the relief ultimately granted is in the form of a money judgment; still that will be possible only through the exercise of equitable jurisdiction in ascertaining the lien and determining its amount. A money judgment may then follow, as a foreclosure is unnecessary when the subject of the lien has already been converted into money. ’ ’

Having preliminarily pointed out the nature of the right conferred by the statute and the remedies for its enforcement that have been sanctioned by the courts, we come to a consideration of the essential nature of the proceeding employed in the instant case — of whether it was “a course of legal proceedings according to those rules and principles which have been established by our jurisprudence for the protection and enforcement of private rights.” In the record it is designated as amotion for the assessment of attorney’s fees in the case pf ‘ ‘ Claude V. Mills, plaintiff, v. The Metropolitan Street Railway Co., R. J. Dunham and Ford Harvey, Receivers, defendants. ’ ’ But such nomenclature, does not truly characterize it. The first pleading filed by Gillham is entitled as though in the ease of Mills against the receivers, but it alleges every fact essential for the- statement of an independent cause of action against defendants in an action at law for the deforcement of his lien. It prays for judgment against defendants for the value thereof. The defendants waived the service of notice, voluntarily appeared and answered. The answer denies that Gillham was ever employed by Mills or that he at any time represented Mills as his attorney in the controversy between Mills and the defendants. It alleges a conspiracy between Gillham and Mills to defraud defendants. To this answer Gillham filed a reply, denying generally its allegation. On the issues thus joined a trial was had, at which evidence was received pro and con, counsel were heard in argument, the cause was duly submitted to the court and a judgment rendered — all in general conformity to the rules and usages observed in the trial of civil actions in this State. The prayer in Gillham’s first pleading asked the court to set aside the entry of dismissal in the case of Mills against the receivers and to open up and reinstate that cause on the docket “for the purposes of this motion, ’ ’ but no reason was suggested for the necessity or propriety of reinstating the cause, no purpose could in fact have been subserved thereby, and the request was properly ignored, both by the court and the parties. The judgment rendered was. a money judgment against the defendants and nothing-more. The court did not attempt to do what it had no power to do on Gillham’s motion, to'-wit, resurrect the dead lawsuit. There is no substance in appellants’ contention that the judgment deprives them of their' property without due process of law, unless it is because they were denied a jury trial. But this right they unquestionably waived. [Sprague v. Carroll, 188 S. W. 63; Kansas City v. Woerishoeffer, 249 Mo. 1.]

Merutt.m • II. Appellants’ next insistence is that the judgment is not responsive to the pleadings, in that, an express contract is pleaded and the recovery is on quantum meruit. The court first gave judgment for defendants. Such judgment was evidently superinduced by the affirmative finding of this issue of fact: “Did the petitioner, Gillham, abandon the cause of action and cease to act therein? Bv abandon, as used herein is meant to give up a thing absolutely.” It could be implied from this finding, considered abstractly, that Gillham voluntarily forsook the duties enjoined upon him by his contract with Mills without the latter’s consent. In.such event, he would not be entitled to. recover even for the service he did render. [Blanton v. King, 73 Mo. App. 148.] But from the court’s subsequent action it is clear that it did not find that Gillham had abandoned his contract in this sense. Indeed, it would be difficult to reconcile such a finding with the facts in proof. Without contradiction, the evidence shows that Gillham instituted the suit and was proceeding with its prosecution in the usual way until he was stopped by Mills’s letter. On being thus summarily discharged, Gillham liad the option of waiting until the .cause of action was liquidated by judgment or settlement and then suing for his fee according to the contract (Reynolds v. Clark Co., 162 Mo. 680; Kersey v. Garton, 77 Mo. 645), or he could treat the contract as rescinded and sue for the reasonable value of his services (Dempsey v. Dorrance, 151 Mo. App. 429). While it is not quite obvious what Gillham could have done by way of protest when Mills discharged him and threatened him with the Bar Association if he did not cease interfering in the case, the trial court must have found that by “acts of . . . omission” Gillham acquiesced in his discharge, that the contract thereby became rescinded, and that as a result Gillham became entitled, on an implied contract, to recover for the reason^ able value of the services he had actually rendered. The law has been definitely written in this State that in an action on an express, contract a recovery cannot be had as on a quantum meruit. [Shoemaker v. Johnson, 200 Mo. App. 209, and cases cited.] While this suit, strictly speaking, is to recover damages for the deforcement of an attorney’s lien, the same reasons for requiring the proof to support the allegations of the pleading and the relief granted to conform thereto obtain as in suits on contract. It is true that the lien is the mere right to have the proceeds of the cause of action impressed with the payment of the compensation provided for by the contract, and it is the wrong involved in depriving plaintiff of this right that is the gravamen of the action, but the existence, character and identity of the lien are derived from the contract. To establish the lien, the contract giving it birth must be specifically pleaded and proved, so that actions'of this kind, while technically not on contract, are such in certain essential respects. 'As there can be no lien in favor of the attorney unless there be a contract debt due him from the client, in a suit by the attorney against defendants for settling with the client in disregard of his claimed lien, the defendants are entitled to defend on the same grounds that the client could were he sued by the attorney for the alleged fees. If, therefore, they deny the existence of the alleged contract of employment pleaded, and consequently the existence of the alleged lien thereof, on the issue thus joined of contract or no contract, lien or no lien, they are no more called upon to rpeet proof of any other contract (and lien) than the one averred in the petition than the client himself would be were he the defendant. In this case an express contract was declared upon as the basis of the lien. The prayer for general relief, added at the court’s suggestion, did not change the character of either the pleading or the action. The judgment being for the value of the lien of an implied contract, effects a recovery on a, cause of action not pleaded, and for that reason will have to be reversed.

Prayerand III. As heretofore, pointed out, the only remedy This proceeding is essentially such an actipn, although available to the plaintiff, on the facts disclosed biy the record, was an independnt action against the defendants. the plaintiff has seen fit to disguise it by filing a petition with an alien title and an anomolons prayer. To now' remand the canse on that account, would be to sacrifice, substance to form. The plaintiff may, if so advised, amend his petition by properly entitling the cause and by striking out .the extraneous portion of the prayer.

The judgment is reversed and the cause remanded to be proceeded with in accordance with the views herein expressed.

Broivn and Small, GG., consur.

PER CURIAM: — The foregoing opinion by Rag-land, C., is adopted as the opinion of the court.

All the judges concur except Woodson, J., absent.