The following opinion on rehearing was filed April 4, 1907. Former judgment vacated and judgment of district court reversed with directions:
1. Cross-Appeal: Filing Bkiefs. By our former practice governing appeals in equity cases one could prosecute a cross-appeal by filing bis brief in due season assailing the decree appealed from.
2. -: —--. Such a brief will be beld to hare been filed in due *392season where appellant fieither objects to service and filing thereof, nor moves to have it strichen from the record as having been filed out of time.Barnes, J.
The Meade Plumbing, Heating & Lighting Company et al. brought this action in the district court against James M. Irwin, his sister, Mrs. Emma McGahey, and others to recover the sum of $248.26, and foreclose a mechanic’s lien on a certain house and lot in the city of Lincoln, owned by said Irwin. A judgment was rendered in favor of the plaintiffs for the sum of $125, and costs, against Irwin and Mrs. McGahey, and the plaintiffs had a decree for a foreclosure as prayed. From that judgment and decree the plaintiff's appealed to this court, and a former hearing resulted in an affirmance of the decree, except as to costs. As to that matter the district court was directed to tax all of the costs to the defendants. Our former opinion, ante, p. 385, contains a full statement of the facts, hence no further statement is required. It was there stated that the plaintiffs were neither entitled to a judgment against Irwin, nor a decree of foreclosure against his property, but as there was nothing in the record showing a cross-appeal, and as his brief assailing the decree was not filed in due season, he was not entitled to have the decree reviewed, and therein lies the error of our former judgment.
It appears that the transcript in this case was filed June 21, 1905. The plaintiff's filed their brief on January 27, 1906. Defendants filed their brief and cross-appeal March 7, 1906. Plaintiffs filed their reply on April 14, and the hearing was had in its regular order on April 17 of the same year. No objection as to time was made by plaintiffs when defendants’ brief was served and filed, and no motion was made to strike because the brief had been filed out of time. So the plaintiffs cannot now challenge the defendants’ right to assail the decree. While both parties were delinquent, in point of time, as to *393filing briefs, yet we are satisfied that under tbe circumstances, as detailed above, tbe defendants filed' tbeir brief assailing tbe decree in due season. Hahn v. Bonacum, 76 Neb. 837; Goos v. Goos, 57 Neb. 294; McDonald v. Buckstaff, 56 Neb. 88. Tbe record discloses that tbe defendants’ brief was entitled “Appellees’ Brief on Cross-Appeal,” ánd from an examination of its contents it further appears that tbe decree was assailed, and affirmative relief was asked for thereby. That this amounted to tbe taking or prosecution of a cross-appeal seems clear under our system of appeals in equity cases in force before the statute of 1905, regulating appeals, went into effect. Tbe plaintiffs, by filing tbe transcript and tbe whole record in this court, opened tbe decree, so that tbe whole case stood for trial de novo. Armstrong v. Mayer, 69 Neb. 187.
Coming now to consider tbe merits of tbe controversy, we are satisfied with what was said in our former opinion as to the plaintiffs’ right to recover against Irwin and have a decree foreclosing tbe mechanic’s lien. We quote therefrom as follows: “Tbe most that can be said of tbe evidence on this point is that Mrs. McGahey bad tbe bare authority to collect tbe rents accruing from this property and pay them over to her daughter. It will not be claimed, we think, that such authority carried with it implied authority to bind the owner by contracts for improvements. It is true, tbe improvements inure to tbe benefit of tbe owner of tbe fee, but tbe same may be said of improvements made by a tenant; but a tenant cannot subject tbe interest of bis landlord in tbe premises to a mechanic’s lien. Waterman v. Stout, 38 Neb. 396.” It follows, then, that tbe judgment against Irwin should be reversed.
This brings us to tbe consideration of tbe question of tbe costs. It appears that Mrs. McGahey, with whom tbe contract for tbe plumbing in question was made, offered to pay tbe plaintiffs $150 in satisfaction of tbeir claim. This offer was refused. There is no competent evidence of a tender in tbe record, or that such tender was kept good. *394It does appear, however, that she offered to pay the plaintiffs $125 after the action was commenced, and brought that sum into court, and tendered it by her answer. This was in effect an offer to confess judgment for that amount, and to authorize the court to render a judgment against her for that sum. The plaintiffs having failed to recover a greater amount were not entitled to recover costs after the filing of her answer, and it was error for the district cpurt to render judgment against her for any part of the costs accruing after that time. It further appears that she has paid the amount of the judgment into court, and that the same has been accepted by the plaintiffs.
For the foregoing reasons, our former judgment is vacated, the judgment of the district court is reversed and the cause remanded, with directions to that court to dismiss the action as to defendant Irwin, and render judgment against the plaintiffs for all the costs which accrued after the filing of the defendant McGahey’s answer.
Judgment accordingly.