(dissenting). — I am entirely satisfied with the decision arrived at in the majority opinion, to the effect that in a mechanic’s lien case, the lien failing, there can be nopersonaljudgmentagainsttheowner; butlcannotagree with that part of the decision which finds that jurisdiction is conferred by the defendant’s not demanding a jury trial.
The stipulation referred to, in myjudgment, was nothing more than an extraordinarily full stipulation to qualify the Mr. Millettas a special judge to try the case, and conferred no jurisdiction on him to do anything more than the judge of the court could have done without any stipulation.
It seems to me, as this case has been decided, that the statute is a mere trap into which defendants in such cases are almost certain to fall. The case being tried as an equity action, the party has no right to a jury trial; but the holding is that unless he demands a jury trial — a thing which he cannot have — he will be estopped from saying that the judgment rendered by the court without jurisdiction is not binding upon him.
In this case the whole attention of the parties was directed to the establishment of the lien on one side and its defeat on the other. The appellant had no opportunity to object to the court’s entering a personal judgment against him, because no such thing was discussed or expected by *534either party. I think it would be far more fair, to hold that lien claimants should try the cases which they bring under the statute, and, if defeated in that action, should not have the reward of being allowed a judgment which the law does not contemplate; and that the defendant, al. though substantially the victor in the cause, should be compelled to pay the costs of disproving a sufficient lien claim-
Dunbar, J., concurs.