The legal effect of the original petition filed May 16,1879, by appellee Henning, was to charge Hyatt individually with $551.06, and to subject the property of the defendant-company to a lien for its payment.
On June 10, 1879, the day of trial, Henning dismissed the cause as to Hyatt, who was a necessary party, if the cause of action as set out in the original petition was relied on, and by amended petition, that day filed, sought not only to make the property liable, but, for the first time, to subject the company to a direct judgment for the debt itself.
This, we think, was such a material change in Henning’s cause of action as to have justly entitled defendant, on his affidavit therefor, to a continuance on the ground of surprise. (Turner v. Lambeth, 2 Tex., 371; Cowan v. Williams, 49 Tex., 396.)
The continuance should also have been granted for the testimony of Hyatt, as prayed for in the motion. It was shown to have been material, and the want of statutory diligence was *475sufficiently excused to bring the application, if not within the letter, at least within the spirit of the statute. (Payne v. Cox, 13 Tex., 480; Price v. Lauve, 49 Tex., 81.)
That the case previously presented by the intervenors as to their separate claims may have been substantially against the company in the first instance, and not against Hyatt, should not have affected the rights of the defendant as between it and the plaintiff' Henning. The company was simply called upon to meet the case as made by the pleadings of each party, and might not on the trial have contested the demands of the intervenors.
There was also, in our opinion, error in so much of the judgment as gave to Henning and the intervenors a lien on the road-bed, &c., for work and labor done previously to February 18,1879, the date of the act under which the lien was claimed.
Section 35 of article 16 of the Constitution of 1876 did not give to laborers on railroads a lien on the property of the company upon which they expended labor, as was provided by succeeding article 37 to mechanics, artisans, and material - men; and whatever lien can be claimed to appellee must be by virtue of the act of February 18,1879. (Appendix to Rev. Stats., p. 6.)
It does not become necessary in this case to decide the very grave question, whether the Legislature, even with the aid of the constitutional provision, could, for the ultimate payment of any and all liabilities which a contractor might incur without the knowledge or fault of the owner, give a lien upon the property of the owner for an amount beyond that of the contract price, this liability to be fixed by some proceedings in the nature of a garnishment, as by statutory notice, as provided by previous and existing laws in regard to mechanics’ liens. (Paschal’s Dig., arts. 4595-4598; Rev. Stats., art. 3176.)
Neither does it become necessary, under the construction we give to the statute, to decide the question,—if, indeed, it be an open one,—whether the Legislature has the constitutional *476power to ingraft, without the consent of parties, upon a previously-existing contract, a stipulation not only for a lien where none existed before, but for “one prior to all others.” (Const of 1876, art. 1, sec. 16.)
If it be admitted that this could be done, it would be in cases only where this legislative intention was clearly shown. (Cooley’s Const. Lim, 370, citing numerous authorities in note 3 ; Taylor v. Duncan, Dallam, 517.)
Our construction of the statute is, that it was intended to give the lien o ily for labor performed after its passage, and not before.
We do not think the objection well taken, that the judgment ordering the sheriff of Grimes county to sell the road-bed, the same being partly in another county, was for that cause erroneous.
Under the act formerly in force, the road-bed, track, franchise, and chartered powers and privileges were deemed an entire thing and sold as such, and a levy was held to embrace the whole road-bed and track and entire line of railroad, whether situated in the same county or not, and the same could be advertised and sold at the court-house door of the county of the principal office. (Paschal’s Dig., arts. 4912, 4914.)
Practically, without great sacrifice, the road-bed could not well be sold except as an entirety.
In the particular complained of, the above statute is not materially changed by subsequent legislation. (Rev. .Stats., art. 4262.)
In this connection it may be observed that the decree substantially follows the language of the act of February 18,1879. (Appendix to Rev. Stats., p. 6.)
That the decree is not more specific seems to have been by reason of the failure of the company to furnish, on demand, a description of the property.
As the cause will be remanded, it would not be proper to *477express any opinion as to the alleged insufficiency of the testimony to sustain the cause of action.
[Opinion delivered February 3, 1880.]Judgment reversed and cause remanded.
Reversed and remanded.