defense of former adjudication was held to be sufficiently answered by a showing that the previous order of adjudication had been vacated on complainant's motion subsequent to the filing of its bill.19 Where the lien was claimed in the interests of a partnership it was held a defense that it was sworn to before one of the partners.20 It is no defense to a bill to foreclose a mechanic's lien that the plaintiff conducted its business under an assumed name in violation of law21 where the assumed name included plaintiff's name and no fictitious or misleading name appeared therein.22 It is no defense to a proceeding by a subcontractor to enforce his lien that he failed to serve on the owner the statement that he was furnishing materials, provided for in section 1,2a where he is the sole lien claimant and the principal contractor admits the correctness of his claim and the owner pays out the last of the funds applicable to the contract with full knowledge of his claim.24 Where the plaintiff, a contractor, put his labor and material into the building and claimed, and the lower court, from examination of the evidence and after examination of the building, found substantial compliance with his contract, and there was ample opportunity for the defendant owner to show the cost to make good alleged defects but he did not do so, the claim to lien was upheld,25 and the request to refer the case back Fairbairn V. Moody, 116 Mich. 61, 74 N. W. 386, 75 N. W. 469. 19. Lowrie & Robinson Lumber Co. v. Campbell Ave. M. E. 20. Smalley V. Bodinus, 120 Mich. 363, 79 N. W. 567. It may be possible to draw a distinction between an acknowledgment and an affidavit; but it seems to us that the same reason forbids official action by one who is to be benefited in both cases. Perhaps no great hardship would result should this affidavit be held valid, inasmuch as it has in no way misled any one, and furthermore states the truth; but the rule, once established, would be applicable to other affidavits, where the dangers of the practice would be more apparent. 21. Act 101 of 1907, C. L. 1915 (6349)-(6353), How. 2nd Ed. §§2626-2630. 22. Hagar v. Schliess, 184 Mich. 472, 151 N. W. 552; 183 Mich. 610, 149 N. W. 1058. 23. C. L. 1915 (14796), How. 2nd Ed. $13766, C. L. 1897 (10710). 24. Green Bay Cut Stone Co. v. Fabry, 169 Mich. 544 (549), 135 N. W. 312. 25. Frederick V. Willis, 176 Mich. 106-108, 142 N. W. 342. 28 for additional proofs was refused. Nor was it a defense that the notice of filing the statement or claim of lien as required under section 3 of Act 216 of 1885, was not served on the owner, where the contract out of which the claim of lien arose was made with the owner.2 26 It has been held no defense to the owner that the lien claimant failed to complete the building in minor details when such failure was caused by the unjust and unreasonable demands of the owner. 27 An unintentional misstatement of the date of furnishing the first and last materials will not be fatal where the claim was in fact filed within 60 days from the furnishing of the last of the material and defendant suffered no prejudice.2 Where a claim of lien verified by one partner states the existence of the partnership, gives the names of its members and states that the affidavit is made in their behalf, it properly shows authority to make and verify claim of lien and no sufficient defense is shown.29 That complainant's book account against the contractor contained other charges than those relating to the building in question is not of itself sufficient to show a waiver of his right to lien.30 It is no defense that a subcontractor's statement was not properly verified because sworn to before the attorney-notary public who prepared it, where he was not attorney of record in the cause. It was held a good defense that a bill to enforce a lien failed to state that respondent was either owner, part owner, or lessee of the land upon which lien was sought to be enforced, or that he held any interest therein, and such failure was held not cured by an admission in the answer that respondent was owner, where she denied that the claimed contract related to that land.32 It is a good defense 26. Lamont V. LeFevre, 96 Mich. 175 (177-178), 55 N. W. 687. 27. McMonegal v. Wilson, 103 Mich. 264 (266, 268), 61 N. W. 495. 28. Union Trust Co. v. Casserly, 127 Mich. 183 (185), 86 N. W. 545. 29. Yeomans V. Parker, 105 Mich. 323 (324), 63 N. W. 316. 30. Union Trust Co. v. Casserly, 127 Mich. 183 (185), 86 N. W. 545. 31. Zilz v. Wilcox, 190 Mich. 486, 23 D. L. N. 24 (26), 157 N. W. 77. 32. Clark v. Raymond, 27 Mich. 456 (460). 33 34 for the owner that he is not a party to the contract for the improvement. It was held a good defense to a lien upon land that the contract for improvements thereon contained no description of the land. Under Act 216 of 1885 it was held no defense to the attaching of a lien that notice was not served upon the owner or other party in interest, where bona fide rights had not intervened.3 § 94. Appeals. The right of appeal is purely statutory.36 In any case where a motion to dismiss, based upon jurisdictional grounds or upon issues which, previous to the Judicature Act of 1915, would have been raised by demurrer, plea to the jurisdiction or other dilatory plea, is passed upon, or a decree or final order under the provisions of the lien act is made by any circuit court in chancery, either party who may consider himself aggrieved by such action, order or decree may appeal therefrom to the supreme court, in the same manner as is provided by law for appeals in ordinary chancery cases, the right of appeal in mechanics' lien cases being governed by the general laws applicable to chancery appeals.37 33. Merrill v. Brant, 175 Mich. 182 (184-185), 141 N. W. 550; John Wallace Sons Co. v. Wilkinson, 181 Mich. 693 (699), 148 N. W. 166; Holland Furnace Co. v. Hartig, 181 Mich. 342 (344-346), 148 N. W. 169. 34. Hammond V. Wells, 45 Mich. 11 (12-13), 7 N. W. 218. 35. Kirkwood v. Hoxie, 95 Mich. 62 (64), 54 N. W. 720; Lamont v. LeFevre, 96 Mich. 175 (177-178), 55 N. W. 687; McMonegal v. Wilson, 103 Mich. 264 (266), 61 N. W. 495. 36. Willard v. Magoon, 30 Mich. 273 (276); Clark v. Raymond, 26 Mich. 415. For forms used on appeal, see Forms No. 40 to 43 inclusive, in appendix. 37. Judicature Act, Act 314 of 1915, Chap. L, §§18-26, Cummings & Beecher, §§1875-1883; C. L. 1915 (13753-13761); 27 Cyc. 452-460; see also §27 of Act 179 of 1891 as amended by Act 143 of 1897; C. L. 1915 (14822), How. 2nd Ed. §13792, C. L. 1897 (10736); The usual rules applicable in chancery proceedings were applied to a bill to foreclose a mechanics' lien in determining that an order overruling a plea upon which defendant relied, was final and appealable. Hagar v. Schliess, 183 Mich. 610, 149 N. W. 1058. Where the lower court awarded certain amounts to the respective lien claimants and the defendant owner, on appeal, Act 84 of 1873,38 specifically giving a right of appeal in such cases, was superseded and expressly repealed by the Judicature Act. The cases applicable to the right of appeal as heretofore existing are referred to hereinbefore and in this note.40 claimed these amounts were excessive, but did not point out any error in the lower court's computation or any improper application of the rule governing the same, or the evidence upon which such computation should be based, it was held the decree of the lower court should be affirmed. Frohlich v. Carroll, 127 Mich. 561 (506-567), 86 N. W. 1034. 38. How 2nd Ed. §§13814-13816, C. L. 1897 (10740-10742). 39. Act 314 of 1915, Chap. LXXXI, 11; C. L. 1915 (14465). 40. Clark v. Raymond, 26 Mich. 415; Willard v. Magoon, 30 Mich. 277; Roberts v. Miller, 31 Mich. 73; Begin v. Henderson, 50 Mich. 468, 15 N. W. 554. Appeals in proceedings to enforce liens: Boisot on Mechanics' Liens, $8675-686; Phillips on Mechanics' Liens, 3rd Ed. §§465-466; 27 Cyc. 452-460. Upon final decree the court may order a sale of the buildings or machinery separately, or the lands, buildings, machinery, structure or improvements together, by a circuit court commissioner or receiver, or may order the property into the hands of a receiver to be leased or rented from time to time under the direction of the court until the liens are discharged, or make such other order or disposition of the premises as justice requires. If upon the coming in and confirmation of the final report any portion of the liens are still unpaid, the court may enter personal decree for the same against any party personally liable therefor, and execution may issue as upon other personal decrees.1 All claims draw *In general as to the subjects comprehended in Chapter XIII, see Title "Mechanics' Liens," 34 Cent. Dig. §§591-654, and 13 Dec. Dig. 88290-310. 1. §14 of Act 179 of 1891, C. L. 1915 (14809), How. 2nd Ed. $13779, C. L. 1897 (10723). Judgment or decree in suit to enforce lien. See Boisot on Me chanics' Liens, §§649-674; Phillips |