(188 P.) "As we construe the effect of the decision in matters of this kind the trial court possesses the case at bar, hereafter when a defendant de- advantages superior to those enjoyed by this sires to set a default against him aside, all court. Hence it is that this court will be that will be necessary for him to do in the mat-less inclined to reverse an order granting, ter of showing that he has a defense upon the merits is to tender a general denial of the alle- than one refusing, an application to open a gations set forth in the complaint of the plain- default. This distinction counsel have wholtiff. If the rule stated in the Pearce and Don-ly failed to observe. The complaint alleges lan Cases has been overruled by this court as to the subject-matter under consideration, then we submit that this court should so state, so that district courts and practicing attorneys may not be in a quandary as to the law upon the subject-matter under discussion. * * Under the rule stated in the opinion in the case at bar, the provisions of the law relative to entering the defaults of defendants, for practical purposes, becomes of no force or effect." [3] Counsel in their petition for a rehear ing overlook the fact that, while the answer filed consisted merely of general denials of all the allegations of the complaint, it was accompanied by three affidavits setting forth substantial facts, which, if true, constitute a complete defense upon the merits. In another respect, too, the present case differs from the cases relied upon by counsel, in that, before the time for the appearance of defendant had expired, they were told by their attorney that "everything had been taken care of." Upon the truth of this state ment the defendants relied, assuming, as they had a right to do, that their appearance had been entered and that they were not then in default. Because of the statement of counsel and the absence of negligence on the part of defendants themselves, the district court rightfully allowed them a trial upon the merits. This was in complete harmony with the spirit of the statute and the legislative perspective in its enactment. In Scilly v. Babcock, 39 Mont. 536, 104 Pac. 677, counsel for defendant, after being retained, entered upon a political campaign and forgot the case entirely; and for aught that appears the defendant himself evinced no greater interest in his defense. Neither is there merit in the contention that the court should have refused to set the default aside because the proffered answer consisted merely of general denials. In Merchants Co. v. Los Angeles, 128 Cal. 619, 61 Pac. 277, it is said: an agreement upon the part of defendants to sell, and plaintiffs to purchase, 4,000 bushels of wheat at the price of $1.07 per bushel-an allegation the answer denies. The affidavits of merits deny the making of any agreement whatsoever concerning a sale of wheat, or that defendants ever offered, agreed, or promised to sell to plaintiff any wheat at all; set forth the circumstances attending the deposit of 120 bushels intended only for storage in the elevator reputed to belong to plaintiff, an offer on the part of defendants to sell the same to plaintiff for the current market price on said day of $1.80 per bushel, and the refusal by plaintiff of that offer. This showing of a defense raised at least a doubt in the mind of the judge of the district court whether justice would not be better subserved by permitting the case to be tried upon its merits rather than to deny defendants a trial altogether. insist we have overruled, it will appear that By a casual glance at the cases counsel ed consisted of mere general denials, unrelief was denied because the answer tendersupported by allegations of fact sufficient to enable the court to test the efficacy of the proposed defense. In the case of Pearce v. 563, the opinion states that no affidavit of Butte Electric Ry. Co., 40 Mont. 321, 106 Pac. East Butte, etc., Co., 42 Mont. 543, 113 Pac. merits whatever was filed. In Vadnais v. 747, this statement appears in the opinion: "There is not a word in this entire record to indicate that the defendant had or has any deThere was not any answer tendered, and the fense whatever to plaintiffs' cause of action. affidavit is silent upon the subject." In Donlan v. Thompson Falls, etc., Co., 42 Mont. 257, 112 Pac. 445, it appears that defendant tendered no answer but "contented itself with asking for additional time to answer." On page 267 of 42 Mont., on page 448 of 112 Pac., this language will be found in the opinion: "Nowhere does it appear that the defendants have a meritorious defense to the action." "The verified answer was served with the notice of motion and became a part of the moving papers. It contained specific denials of the material allegations of the complaint, and also affirmative matter which, if true, was a comWe are satisfied that our previous rulings plete defense to the action. It was 'duly veri- upon the subject-matter involved remain fied,' and was an answer for each and all the unaffected by anything we have said herein, defendants. It was therefore, of itself, a suffi-and that the petition for a rehearing should cient affidavit of merit." be, and is, denied. See, also, Smith v. McCormick, 52 Mont., on rehearing, at page 326, 157 Pac. 1010. BRANTLY, C. J., and HOLLOWAY, MAT It is obvious, that in the determination of THEWS, and HURLY, JJ., concur. (57 Mont. 334) ed upon the construction of a building; that INTERSTATE LUMBER CO. v. UMHANG thereafter Umhang and Billings engaged the et al. (MAGILL-NEVIN PLUMBING & plumbing company to install the plumbing in HEATING CO., Intervener.) (No. 4090.) | the building; also that for use in the con(Supreme Court of Montana. Feb. 24, 1920.) 1. MECHANICS' LIENS 5-WHILE LAW REMEDIAL, ITS REQUIREMENTS MUST BE COM PLIED WITH. While the mechanics' lien statutes are re medial, the requirements for the perfection of a lien must be complied with. struction of the house Billings purchased lumber from the plaintiff. Thereafter during the statutory period the plaintiff and the intervener each filed liens seeking to charge the property with the value of the material furnished by each. The question raised by the demurrer is whether the lien claim of the intervener is 2. MECHANICS' LIENS 157(1)-NOTICE AL-sufficient in law to constitute a valid lien WAS OWNER IS INSUFFICIENT. Despite the remedial nature of the mechanics' lien laws and Rev. Codes, § 7291, providing LEGING THAT LIEN OR INSTEAD OF LIENEE against the property. The notice of lien claim, so far as material, is as follows: "Magill-Nevin Plumbing & Heating Co., a Corporation, Lienor, v. Henry Umhang, Lienee. "Notice is hereby given that the Magill-Nevin Plumbing & Heating Company * * formed work upon and furnished material and fixtures for that certain building * designated as No. 129 East Aluminum street, Butte, Mont. that any error or mistake in the account or description does not affect the validity of the lien if the property can be identified, a notice of lien claim which erroneously stated that the lienor was the owner, when in fact the lienee was owner, will not support a mechanic's lien. 3. MECHANICS' LIENS 264(2)—INTERVENER MUST ESTABLISH A GOOD MECHANIC'S LIEN. To be entitled to intervene in proceedings by another lienor to foreclose a mechanic's lien, the intervener, under Rev. Codes, § 6496, must show a good mechanic's lien, and hence, although the complaint was sufficient to state a cause of action on the contract, yet, where the notice of lien claim clearly disclosed that the intervener had no right to a lien, demurrer to the complaint will be sustained. per "That said material and fixtures were actually furnished and said work and labor were actually performed in the improvement of said building and consisted in doing plumbing work and furnishing plumbing material for said building in accordance with the contract and according to the account hereto attached marked Exhibit A. "That said work and labor was performed and said materials and fixtures were furnished by the said lienor at the special instance and re Appeal from District Court, Silver Bow quest of said lienee. County; J. B. McClernan, Judge. Action by the Interstate Lumber Company against Henry Umhang and S. W. Billings for the foreclosure of a mechanic's lien, in which the Magill-Nevin Plumbing & Heating Company intervened. A demurrer was sustained to the complaint in intervention, and a judgment entered in favor of defendant Billings, and the intervener appeals. firmed. Af Chas. R. Leonard, Earl N. Genzberger, and "That a just and true statement of the account therefor is hereto annexed, marked Exhibit A, and made a part hereof, and that the same is a just and true account of the amount due, owing, and unpaid said lienor by said lienee on account of said work and material, after allowing all credits, to wit, $345. "That the said lienor is the owner of the above-described real estate, including said building thereon situate. * "That the said Magill-Nevin Plumbing & Heating Company therefore claims a lien on said above-described real estate in the sum of $345, together with interest * * * from July 9, 1914, the date when the balance was ascertained as the amount due, owing, and unpaid to said lienor by said lienee for work and labor thereon performed and fixtures and materials furnished as herein before set forth." Tr. pp. 10 to 13. This court, in the case of Missoula Mercantile Co. v. O'Donnell, 24 Mont. 65, 60 Pac. 594, 991, upon the original hearing, and later, HURLY, J. In an action instituted by the Interstate Lumber Company against Henry Umhang and S. W. Billings for the foreclosure of a mechanic's lien, the Magill-Nevin Plumbing & Heating Company, after obtaining leave of court, filed a complaint in intervention, to which plaintiff and defendant Umhang each filed answer. Defendant Bill-after a rehearing, held clearly and unequiv. ings demurred thereto. The demurrer was sustained, and judgment was entered in favor of Billings as against the intervener, from which judgment the intervener appeals. The pleadings set forth that Umhang was the owner of certain lots in Butte, and contracted with Billings for the erection of a dwelling thereon, and that the latter enter ocally that a lien which fails to set forth the name of the owner whose interest is sought. to be affected and charged is fatally defective. In the later case of Cook v. Gallatin R. Co., 28 Mont. 340, 72 Pac. 678, the rule established in the O'Donnell Case, supra, was reaffirmed. (188 P.) we have none permitting amendments of mechanics' liens. The lien set forth in the complaint in intervention certainly fails to assert a claim of lien against the property of Umhang, Even while the statute (section 7291) prowhose property is sought to be charged with vides that any error or mistake in the acthe lien of the original plaintiff. In so count or description does not affect the vamany words it says that the lienor (Magill-lidity of the lien if the property can be idenNevin Plumbing & Heating Company) is the tified by the description, the validity of the owner, not Umhang. lien must be tested by the description contained in it. It is only in cases of an ambiguity that it may be explained and the property identified by oral evidence. Johnson v. Erickson, 185 Pac. 1116, not yet officially reported. [1, 2] The rule is well settled in this state by many decisions of this court, commencing with Black v. Appolonio, 1 Mont. 342, that while the statute is remedial in character, its requirements must be complied with. As said in McGlauflin v. Wormser, 28 Mont. 177, 72 Pac. 428: "The manner of perfecting a mechanic's lien consists of various steps, which are purely statutory, and, while the statute is in some respects remedial in its nature, and thus far should be construed liberally, it creates a new right, and the statutory proceedings by which this new right is perfected and enforced must be strictly followed." In Goodrich Lumber Co. v. Davie, 13 Mont. 76, 81, 32 Pac. 282, 283, it was said: "The description of the ground is perfectly definite and certain. The only difficulty is that it was a wholly wrong description." Here, in view of the allegations of the complaint, while the lien purports to state the name of the owner, the lien claim states the name of one not the owner, and thereby actually fails to state the name of the owner, or the person whose interest is sought to be charged. Instances are conceivable wherein an owner may file a lien affecting his own property -i. e., where the owner has furnished material to a tenant to be used in improving [3] Appellant contends that, because the demised premises-in which event the owner complaint in intervention states a cause of might possibly file a lien against the proper-action in favor of the plaintiff in interventy for the purpose of reaching the tenant's tion against defendants, Umhang and Billinterest. In this case, however, it clearly appears from the allegations of the complaint that Umhang was the owner of the property, and that it is against his property that the foreclosure is attempted, while the lien itself asserts a claim against the property of the plaintiff in intervention, thus creating a variance between the allegations in the body of the complaint and the statements contained in the lien, which is the basis of the cause of action asserted by plaintiff in intervention. Counsel cites us to the case of Ivanhoff v. Teale, 47 Mont. 115, 130 Pac. 972, which was a suit for the enforcement of a statutory lien; the complaint stating that "the defendant actually completed all the work," etc., whereas it should have stated that the "plaintiff" did the work. It was there contended that the complaint did not state facts sufficient to constitute a cause of action because of this error. The court said: "This contention is without merit. It is apparent that the pleader, in drawing the complaint, inadvertently substituted the term 'defendant' where he intended to use the term 'plaintiff.' At most, this substitution of terms served only to render the pleading open to objection by special demurrer on the ground of uncertainty. Such a defect is waived by answer to the merits." However, the grounds of demurrer here fully reached the defect in question, and there has been no answer on the merits. It should be borne in mind also that, while our statute permits amendments of pleadings, 188 P.-10 ings, on contract, the demurrer should not have been sustained. This might be true were plaintiff in intervention merely suing on such contract, or had he brought an independent action upon the lien, with demand for judgment for the amount due upon the contract. However, here it seeks relief in an action brought by another plaintiff. Unless plaintiff in intervention has an interest in the subject-matter of the original action, it may not intervene. Revised Codes, 1907, § 6496. Its right, if it existed at all, to intervene, was dependent upon the existence of a valid lien and the interest it thereby had in the subject-matter of the action commenced by the plaintiff Interstate Lumber Company. A somewhat analogous situation existed in Cook v. Gallatin R. Co., supra. There the court said: "The alleged fact that they have a cause of action at law for a money judgment against the defendants, or one of them, is not of itself sufficient to warrant intervention in the suit of plaintiffs to foreclose a lien, however willing the plaintiffs may be to permit the interveners to come in. * Because the having of a right of action against a defendant (in a certain cause commenced by another) for the recovery of money merely, without a right of lien, is not ground or reason for intervention in a cause brought by another party against said defendant, we conclude that the demurrer as to each of the alleged causes of action should have been sustained." See, also, Moreland v. Monarch Min. & aid the allegations of the complaint, the court was not in error in sustaining the de murrer. The judgment appealed from is therefore affirmed. Affirmed. statutes relating to appeals in civil cases, a party who failed to appeal from a decree admitting a will to probate, as well as those orders approving prior accounts of the executor, cannot raise such matters on appeal from a final settlement of accounts, for they have become res judicata. BRANTLY, C. J., and HOLLOWAY, MAT- 6. WILLS 260-AFTER EXPIRATION OF ONE THEWS, and COOPER, JJ., concur. (57 Mont. 273) In re MURPHY'S ESTATE. (No. 4074.) (Supreme Court of Montana. Feb. 16, 1920. On Motion for Rehearing, March, 1920.) 510(8) 1. EXECUTORS AND ADMINISTRATORS accounts cannot be considered on an appeal from an order settling a subsequent account of an executor. YEAR PROBATE OF WILL CAN IN NO WAY BE Rev. Codes, § 7407, providing for contest of a will after probate at any time within a year, is in effect a statute of limitations, and after expiration of the year the probate becomes final, and cannot be attacked directly or collaterally. 7. APPEAL AND ERROR 170(1) SUPREME COURT CAN CONSIDER ONLY MATTERS PROPERLY BROUGHT BEFORE IT ON APPEAL. Under Const. art. 8, § 2, the Supreme Court, save as to matters over which it is expressly Under Rev. Codes, § 7649, errors in former given original jurisdiction, can only consider such matters as are properly brought before it on appeal, and hence cannot, on appeal from a final decree of distribution, consider matters, such as an attack on the probate of a will, which were not raised in the trial court. 8. WILLS 222 ON APPEAL FROM FINAL DECREE OF DISTRIBUTION PROVISIONS OF A WILL CREATING A TRUST CANNOT BE ATTACKED. 2. EXECUTORS AND ADMINISTRATORS 510(7) -RECORD HELD SUFFICIENT ON APPEAL FROM ORDER SETTLING FINAL ACCOUNTS. Where the transcript of the record on appeal from an order settling the final accounts of the executor contained practically all of the papers in the probate proceedings which were properly authenticated, it was sufficient for determination of the appeal, although it was unnecessary to incorporate in the record papers relating to the settlement of previous accounts, for those matters could not be reviewed. 3. APPEAL AND ERROR 151(6) SON AND HEIR OF TESTATOR MAY APPEAL FROM DECREE SETTLING EXECUTOR'S ACCOUNTS AS "PERSON AGGRIEVED," OR "PERSON INTER ESTED. A son and heir at law, whose pecuniary rights were affected by a decree settling the final accounts of the executor, is a "person aggrieved," or "person interested" in the decree, within the statute, so as to be entitled to appeal, for "person interested," within the meaning of the law, is one who has some legal right or is under some legal liability that may be enlarged or diminished by the decree. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Aggrieved; Interest.] - Where appellant did not appeal from a decree admitting the will to probate within the time allowed, and made no appeal from any order or decree of the probate court until the that time attack those provisions of the will creorder of final distribution, appellant cannot at ating a trust. 309 9. EXECUTORS AND ADMINISTRATORS In view of the powers of the probate court 4. COURTS 202(5)-RIGHT OF APPEAL IN note, and an heir cannot attack the decree on PROBATE CASES IS WHOLLY STATUTORY. The right of appeal rests wholly on statute, and compliance with the statute is essential to perfection of an appeal in a probate case. 5. EXECUTORS AND ADMINISTRATORS 510(8) -PROBATE OF WILL AND APPROVAL OF PRIOR ACCOUNTS NOT REVIEWABLE ON APPEAL FROM FINAL ACCOUNTING. Under Rev. Codes, §§ 7645, 7648, 7649, relating to appeals from settlement of accounts of executors, and in view of sections 7711, 7712, 7714, making applicable to probate cases the the ground that the estate had not been closed. On Motion for Rehearing. 11. APPEAL AND ERROR 835(2)-MATTERS NOT PRESENTED ON FIRST HEARING WILL NOT BE CONSIDERED ON REHEARING. It is the universal rule that the court will not consider on rehearing matters not presented on the original hearing. Appeal from District Court, Lewis and Clark County; W. H. Poorman, Judge. (188 P.) In the matter of the estate of John T. Murphy, deceased. From a judgment finally settling the accounts of the executor, John T. Murphy, Jr., appeals. Affirmed. Walsh, Nolan & Scallon, of Helena, and Frederick H. Drake, of Portland, Or., for appellant. Wm. Wallace, Jr., of New York City, and John G. Brown and T. B. Weir, both of Helena, for respondent. the account was approved, settled, and allowed by the court. On September 3, 1915, the executor filed petition for order of partial distribution, relating, however, only to certain real estate sold by the trustees. The day of tions were filed, and the order was duly made hearing was set and notice given; no objecOn February 16, 1917, the executor filed his and entered on the day set for the hearing. final report and account and petition, setting forth that all claims against the estate had been paid, as well as all the expenses of administration, showing distribution of the net income from moneys on hand to the chil manner provided by the will, and distribution of the remainder of the estate to the widow and the trustees, as follows: MATTHEWS, J. John T. Murphy died May 22, 1914, leaving a will by the terms of which one-fourth of his estate, after the pay-dren of deceased, including appellant, in the ment of certain small bequests, was left to his wife, Clara C. Murphy, and the remaining three-fourths to a board of trustees, for the use and benefit of his children and grandchildren. The two daughters of deceased were each to receive the income from the one-third thereof until they reached the age of 50 years, when the principal would be turned over to them, or, if either married before reaching that age, such daughter would rẻceive the one half of her share on marriage, and the other half on attaining the age of 50 years. The income from the other third of the residue was to be divided between the son, John T. Murphy, Jr., and his two minor children; the children's half of the principal to go to them equally on reaching the age of 21, while the son (this appellant) would receive but the income during his lifetime, the principal to go to his children on his death. The will provided that the trust created should continue for a period of 10 years, "and for such a reasonable period thereafter as may be necessary to enable my trustees to complete the trust confided to them, as herein provided, except to the extent, if at all, that the same shall be sooner terminated as to any one or more of my children," and provided for the successors to the trustees named. Petition for probate of the will was filed May 27, 1914, and notice duly given setting the matter for hearing for June 6, 1914; no objections being filed, the will was admitted to probate on the last-mentioned date, and the executor therein named was duly appointed and qualified. More than one year has elapsed without the filing of a contest of the will by appellant or any other person interested in the estate. On May 21, 1915, the executor filed his first annual account and report to the court, in which he recited, among other things: "By partial distribution: Clara C. Murphy, $181,000; A. L. Smith, Massena Bullard, and Rolla P. Heren, trustees, $699,375" "Clara C. Murphy, ⭑ * $456,107.74." $152,035.92; vouchers, only property remaining in the hands of the The report and account further show the bankruptcy court, which the petition alleged was of no value, and that the estate was ready to be closed. The executor further petitioned that final distribution of the estate February 27, 1917, was set as the day for be made and that he be finally discharged. hearing on the account and petition, and notice thereof duly given by the clerk of the court in the manner prescribed by law. No exceptions in writing to the account were filed, and no contest thereof instituted, and on said day the account and petition were heard, and decree made and entered, settling, allowing, and approving the account and report, and all acts of the executor, making final distribution of the estate, and reciting executor to be a note for $1,000, then in the that "The said A. L. Smith is fully and finally discharged from his trust as executor." On April 26, 1917, just within the 60-day limit, under section 7713, Revised Codes, appellant filed his notice of appeal from the final decree, in which he designates four appeals, and on which he filed four undertakings on appeal: (1) From the settlement of the account; (2) from the decree of distribution; (3) from the discharge of the executor; and (4) from the whole of the decree. The respondent contends that the appeal should not be entertained for the reason: [1,2] 1. That there is no authentic record before the court for consideration; that there is no "bill of exceptions." As there were no objections or exceptions taken in the lower -which last amount was receipted for to the court, there could be no settled bill of excepexecutor by the trustees named. June 1, tions. The transcript contains practically 1915, was set by the court for hearing on the all of the papers in the probate proceedings, account, and notice thereof duly given by certainly all of the record in this matter the clerk of the court. No exceptions were which was, or could have been, used on the filed to the account, and no contest thereof hearing; it is duly certified by the clerk of instituted, and on the day set for hearing the court, who was the legal custodian of the |