On Petition for Rehearing.
Jordan, J.Appellants separately petitioned for a rehearing, on the grounds (1) that each of them was entitled to a trial by jury in the lower court; (2) that their right to a jury trial was not waived. Appellee Bick has also petitioned for a rehearing of this case, so far as may be necessary for the court to amend and modify its judgment and thereby fully sustain and affirm the judgment and decree of the Howard Circuit Court. He claims that if he is not entitled to a lien as a contractor under the act of 1883, that his right thereto is saved and awarded to him by virtue *42of an act of March 10, 1873 (Acts 1873 p. 187, §§5301-5303 R. S. 1881), entitled: “An act to give security to persons who contract with railroad corporations to perform work and labor in the construction of railroads,” which act he claims has never been repealed, but is in full force and effect.
Other attorneys, on behalf of parties interested in like cases, in upholding their right to a lien as contractors, in briefs filed herein, criticize the decision as not being supported by the authorities cited, etc.
15. The arguments in the main advanced by appellants for a rehearing are (1) that the decision in this appeal denies to them the right of a trial of the cause by jury, a right, as they properly claim, guaranteed under the state Constitution; (2) that there should be a reversal of the judgment in its entirety, a new trial ordered, and the cause remanded to the lower court in order that they may be afforded an opportunity to demand a trial by jury as a matter of right. It is further contended that during the progress of the trial below appellants were not in a situation to demand a trial by jury, for inasmuch as this suit is to foreclose a statutory lien, it, under our decisions, was of equitable cognizance and therefore triable by the court; that therefore a trial by jury could not be demanded as a matter of right, and to have requested the lower court to submit the cause to a jury' would have been but a useless formality. They further argue that they demurred to the complaint for Avant of facts, that their demurrer was overruled, to which ruling they excepted; that they objected to the introduction in evidence of the notice in respect to the lien sought to be enforced by appellee Bick, and that by these affirmative acts on their part they raised the question of their right to a trial by jury, and that such right was by these acts clearly preserved. It is not claimed, however, that they made any request whatever in the lower court for a jury trial, and there is no ruling of the court in *43denying any such demand assigned in tlie motion as a reason for a new trial.
16. Appellants, in their contention that by the demurrer to the complaint and objection to the introduction of the notice of the lien in evidence they raised and preserved the right to a jury trial, are clearly mistaken in their view of the question. In fact the only point presented by the demurrer and determined by the court in its ruling thereon was that the complaint stated a cause of action. If the complaint, independently of appellee Bick’s right to the lien in controversy, sufficiently stated a cause of action to entitle him to a personal judgment, then the demurrer was properly overruled. Our cases generally affirm that if a complaint is sufficient to entitle the plaintiff to any of the relief demanded, a demurrer thereto should be overruled. Linder v. Smith (1892), 131 Ind. 147; Yorn v. Bracken (1899), 153 Ind. 492; Chicago, etc., R. Co. v. Woodard (1902), 159 Ind. 541; Oölitic Stone Co. v. Ridge (1908, 169 Ind. 639. See, also, Shepardson v. Gillette (1892), 133 Ind. 125; United States Sav., etc., Co. v. Harris (1895), 142 Ind. 226.
15. Opposing counsel insist that appellants waived their right to a jury trial by submitting the cause to the court without requesting that they be a,warded a jury, and in not interposing any objections to the submission of the cause to the court for trial. It is insisted that an entry of record in this ease fully discloses that appellants consented to the submission of the cause to the court for trial, and that thereby a jury trial was expressly waived. This entry is as follows: ‘ ‘ Come the parties by counsel, and this cause being at issue and called for trial, the same is now submitted to the court for trial, without the intervention of a jury.”
*4417. *43As preliminary we may say that we might properly deny appellants’ petition for a rehearing, on the ground that they *44are not in a position to have a review of the question which they present at this stage of the case. But as their counsel assert that it is one which is before this court for the first time, and as they evince much earnestness in their argument, we have- concluded to consider their points, and herein give our reasons to show that their contentions in support of the petition are untenable.
15. The question then is, Did appellants, in the lower court, either expressly or impliedly, waive their right to a trial by jury? Section twenty of our bill of rights (Const. Art. 1, §20) declares that “in all civil eases, the right of trial by jury shall remain inviolate.” That this right, in all civil cases where it exists, may be waived by a party entitled thereto is not disputed. Section 576 Burns 1908, §550 R. S. 1881, provides the manner by which parties in a civil action may expressly waive their right to a jury trial: (1) By failing to appear at the trial; (2) by a written consent in person or by attorney, filed with the clerk; (3) by the oral consent in open court entered on the record. That this right may also be impliedly waived by a party failing at the proper time to make a demand or request for trial by jury is a proposition well settled by repeated decisions of this court. Madison, etc., R. Co. v. Whiteneck (1856), 8 Ind. 217; Burgess v. Matlock (1859), 12 Ind. 357; Sprague v. Pritchard (1886), 108 Ind. 491; Jarboe v. Severin (1887), 112 Ind. 572; Sheets v. Bray (1890), 125 Ind. 33; Blair v. Curry (1898), 150 Ind. 99; Boonville Nat. Bank v. Blakey (1906), 166 Ind. 427.
In the case of Madison, etc., R. Co. v. Whiteneck, supra. this court said: “ If a party voluntarily abstains from claiming the right [of trial by jury] in a given case, we think it may be judicially held that it is waived. ’ ’
We quote from the syllabus in the following cases: Jarboe v. Severin, supra: “Where a party does not ask for a trial by jury, nor object to a trial of the cause by the court, with the jury as advisory merely, it is too late to object on appeal *45to the mode of the trial.” Sheets v. Bray, supra: “Where the right to a trial by jury exists, and no request is made for the same, it will be considered as waived.” Blair v. Curry, supra: “A jury trial is waived by a failure to demand it at the time of trial. ’’
In the case of Boonville Nat. Bank v. Blakey, supra, this court, after considering the manner by which a jury may be waived, as provided by §576, supra, on page 448, said: “While it does not admit of doubt that there may be an implied waiver of the right of a jury trial, yet such waiver will not be predicated upon a doubtful implication. ’ ’ Or, in other words, where the waiver is predicated upon implication, the intention of the party to waive his right to a jury should be clearly manifested.
In the case of Goodwin v. Hedrick (1865), 24 Ind. 121, this court held that an agreement to refer a cause to a referee for hearing was totally inconsistent with a submission to a jury, and was, therefore, a waiver of a jury trial. See, also, Taylor v. Trustees, etc. (1893), 7 Ind. App. 388; Whitestown Milling Co. v. Zahn (1894), 9 Ind. App. 270.
In the case of Hauser v. Roth (1871), 37 Ind. 89, the appellant was present in court by his counsel when the cause was ordered to be referred to a master in chancery to find the facts and report his finding to the court. Appellant in that ease was ordered by the court to furnish the master with a bill of particulars, and with this order he complied. He was also present in court by counsel when the master filed his report, which was ordered to be spread of record. The appellant, as it appears, in that appeal, interposed no objections to the referring of the cause to a master, and made no objections to the court’s order at any stage of the proceedings. After the filing of the master’s report, containing the finding, appellant then demanded a trial by jury, but his demand was overruled, to which ruling he excepted. In reviewing the question, on appeal, as to whether he had waived his right to a trial by jury, under the facts in that *46case, this court, after quoting from the provisions of the civil code of 1852 (2 R. S. 1852, p. 115), which provided the mode by which a jury trial might be waived (being the same provisions now embraced in §576, supra), held that appellant, in not objecting to the order of the court in submitting the cause to a master in chancery for a finding, must be presumed to have given his oral- consent in open court, which was entered of record, and that thereby he waived a jury trial within the spirit of the third mode provided by §576, supra. The court, speaking by Worden, J., said: “Here it will be seen that the parties were in court at the time the court made the order referring the cause to the master, and requiring the appellant to furnish him with a bill of the particulars of the itemized account claimed in his answer. =» * * The appellant, by his attorneys, was present when the order was made, and submitted, not only to the order of reference, but the order requiring him to furnish the master with the specified bill of particulars, making no objections thereto whatever. He must be presumed, therefore, to have consented. If he had required a trial by jury, a mode entirely inconsistent with a reference of the cause to a master, he should then have objected to the reference.”
The decision in the case just quoted from, upon the question involved, is quite applicable to the one in the case now before us. Appellants, at the time this cause is shown to have been submitted to the court for trial, without the intervention of a jury, were present in court by counsel, and, as nothing to the contrary appears, it must be presumed that the entry of record in respect to the submission of the cause to the court was predicated upon the oral consent of appellants and appellees, and thereby falls within the third mode prescribed by §576, supra, and must be held as an express waiver of a jury trial by appellants and appellees; consequently appellants cannot be heard to say that they were in any manner denied the right to a trial by jury. It is a well-settled rule, recognized by our decisions, that where a *47party is in court in person or by counsel, and an opportunity is afforded him at the proper time to assert his legal right, his failure to do so is considered as a waiver of such right. Zehnor v. Beard (1856), 8 Ind. 96; Preston v. Sandford (1863), 21 Ind. 156, and authorities cited; Adams v. Board, etc. (1905), 164 Ind. 108, and authorities cited.
18. There certainly is no merit in the argument advanced by appellants ’ counsel, that as this suit involved the foreclosure of a statutory lien, and is therefore of equitable jurisdiction, or, in other words, triable by the court and not as a matter of right by jury, they were not in a position to demand a jury, and to have interposed such a demand would have been an idle formality and of no avail. Appellants were bound to know what were their legal rights, and properly to assert them. Their counsel in this appeal successfully raised the question that appellee Biek was not, under the law, entitled to the lien which he sought to have enforced. We have no reason to presume that they were not impressed with the same view of the law Avhen the cause Avas submitted to the court for trial. Under the circumstances, appellants’ counsel are not warranted in their contention that to have demanded a jury in the case would have been of no avail. Conceding that the lower court possibly might have denied this demand, still this Avould not have rendered it unavailable to appellants, for had the record disclosed that a request for a trial by jury had been made at the proper time, but was overruled by the court, and that such ruling was assigned as a reason in the motion for a new trial, then, upon reaching the conclusion, as we did, that under the law appellee had no right to the lien which he claimed, Ave would have considered no other question raised in the case, but for the error of the eourt in refusing a jury trial Ave would have ordered a reversal of the judgment as a whole and have remanded the cause to the lower court for a new trial, with instructions to grant appellants’ demand for a trial by jury and for further proceedings.
*4815. The claim is advanced by appellants that because the court, instead of a jury, was permitted to try and determine the cause, it was therefore tried upon the wrong theory, to their injury, and hence for this court to affirm as correct the action of the trial court in rendering a personal judgment it must be made affirmatively to appear that substantial justice was done in the trial below. Or, in other words, even if remanded for a new trial, a jury will be compelled to reach the same conclusion as that arrived at by the trial court. This contention is certainly untenable and devoid of merit. If the contention be true in respect to the wrong theory arising out of the trial by the court, then it may be said that appellants helped to bring about this wrong theory by their failure to ‘demand a jury trial, and by consenting to the submission of the cause to the court, thereby giving the lower court to understand that they entertained the view that under the law the case was not triable by jury as a matter of right. The parties undoubtedly, in the lower court, acted upon the assumption that the issues were triable by the court, without the intervention of a jury, a,nd certainly neither party will be permitted to depart from this theory upon appeal to this court. Elliott, App. Proc. §490.
The decision in the case of Shaw v. Kent (1858), 11 Ind. 80, so far as it can be said to hold that a trial by jury can only be waived by a party by some one of the modes prescribed by §576, supra, is inconsistent with the holding of this court in its many decisions to which we have referred, and upon this point the case of Shaw v. Kent, supra, has been, at least impliedly, overruled, and no longer can be considered as an authority.
1. By reading the original opinion it will be seen that we did not hold that §8305 Burns 1908, Acts 1889 p. 257, §6, was invalid, but the holding was that its provisions did not apply to contractors such as was appellee Bick; that to construe it so as to make it. apply to him would render it antagonistic to article 4, §19, of the *49Constitution, for the reason that contractors of his class were not within the scope of the act as originally entitled. To the many authorities cited in our opinion we may now add Phillips, Mechanics’ Liens (3d ed.) §157, wherein the author says: “But when we study the legislative intention in the enactment of a law granting those who work chiefly through physical means certain privileges, it is possible to see that the term ‘labor’ is used in a restricted sense, and not in its broad and comprehensive meaning. The object of the lien laws, now almost universal, is not doubtful, on authority at least. One purpose may have been to protect the laboring man, the man whose subsistence depends on the wages earned by his own manual labor, from the reckless improvidence of his employer, and to furnish him with ample security for his earnings, which ordinarily he could not successfully demand. If this was the intention of the legislature in the passage of the law in question, then it follows that it does not apply to contractors employing men and teams to cut and haul timber, doing no manual labor themselves, and deriving their compensation from the profits realized. Most of the authorities that we have examined support this view of the law, except in cases where, from the wording of the statutes, a different intention clearly appeared.”
19. In opposing the contention of appellee Bick, that he has the right to have and enforce a lien under the act of 1873, supra, counsel for appellants insist that his contention cannot be sustained (1) because that act was repealed by the act of 1883; (2) that if not repealed, nevertheless appellee Bick and his coappellees are not embraced within its provisions. We pass without deciding the question raised in respect to the repeal of this statute, and consider the second point advanced by appellants’ counsel.
The act of 1873, supra, is entitled: “An act to give security to persons who contract with railroad corporations *50to perforin work and labor in the construction of railroads. ’ ’ It will be observed that the persons mentioned in the title are those who contract to perform work and labor. The first section of the act (§5301 R. S. 1881) under the provisions of which a lien is awarded, provides that “all persons who, by contract with any railroad corporation or company, shall perform work or labor for any such corporation or company in the way of grading, building embankment, or making excavation for the track of any railroad, * * * shall have a lien upon such grading, embankment, or excavation. ’ ’ It is manifest, we think, that this section, so far as it professes to apply to or include persons entitled to its benefits, is no broader than section twelve of the act of 1883, and cannot be said to create a right to a lien upon the property of appellant railroad company in favor of appellee. Neither the title nor the body of the act of 1873, supra, can apply to a contractor such as appellee Bick, or to a person to whom the work of constructing a railroad is let, and who, in carrying out his contract, performs no manual labor himself, but, as the authorities assert, employs men and teams in the performance of his contract, and “derives his compensation from the profits realized.” By the plain language of the act of 1873, supra, the right to a lien is limited to all persons who by contract, either express or implied, “perform work or labor,” etc.
It follows that each of the petitions of appellants and the petition of appellee Bick for a rehearing should be overruled, which is accordingly ordered.
On Motions to Retax Costs.
Per Curiam.After the decision in this appeal, the clerk of this court appears to have taxed all the costs against appellees. Appellee Bick, in his own behalf and in behalf of his eoappellees, has filed a motion to retax costs therein, requesting the court to order the costs accruing by reason *51of this appeal'to be taxed against appellants: (1) That the costs of the transcript, except that part thereof which embraces the pleadings and the rulings of the court thereon, be taxed against appellants; (2) that the costs arising out of the order of publication and serving of notice upon the coappellants be also taxed against appellants; (3) that the court make such further order in regard to the taxation of costs as may appear proper and right in the premises.
As shown in the opinion given on the original hearing, there were two branches of this cause in the lower court, one made and maintained by appellees Hogue & Brennan under their complaint, and the other by appellee Biek under his cross-complaint, upon which he recovered the judgment in his favor. Each of these branches upon appeal presented in common the right of appellees respectively to have and enforce a lien under the act of 1883 (Acts 1883 p. 140). In considering the motion to retax costs, the judgment of the lower court may be separated into two parts, one awarding a recovery of money in favor of appellees Hogue & Brennan on their complaint, a foreclosure of the lien set up in their complaint, and attorneys’ fees thereon; the other part awarding a recovery of money in favor of appellee Bick, and a foreclosure of the lien claimed by him upon his cross-complaint, and attorneys’ fees thereon. The pleadings in each branch of the case appear to have been made up jointly, but each branch appears to have been tried separately. The bill of exceptions containing the evidence given upon the trial of the issues between appellants and appellees Hogue & Brennan begins on page 333, volume one, of the bill, and continues to page 1381, volume two. The evidence given upon the trial between Bick and appellants begins on page 1381, volume two, of the bill of exceptions, and embraces the remainder of that volume and all of volumes three and four. All that part of the judgment of the lower court which awarded the recovery of money, other than attorneys’ fees, in favor of Hogue &¡ *52Brennan was affirmed, as was also the part thereof which adjudged a recovery of money, other than attorneys’ fees, in favor of appellee Bids on his cross-complaint. The part thereof which decreed the foreclosure of the respective statutory liens claimed by appellees, and which also decreed attorneys’ fees in their favor, was reversed and the case remanded, with instructions to the lower court to modify the judgment by eliminating therefrom the part under which the foreclosure of appellees’ respective liens and attorneys’ fees thereon were decreed. The effect of this order was to open the case in the lower court so far only as to permit the lower court to modify the judgment as ordered. The question now arises, How shall the costs accruing by reason of the appeal to this court be taxed and apportioned ?
Section 706 Burns 1908, §664 R. S. 1881, prescribes a general rule for awarding costs in cases on appeal. This section provides: “When the judgment is affirmed in whole, the appellee shall recover costs; and when the judgment is reversed in whole, the appellant shall recover costs in the Supreme Court and the court below, to the time of the first error for which the judgment is reversed, which shall be pointed out in the opinion of the Supreme Court. In all other cases, costs shall be awarded as the court may deem right, following, as nearly as possible, the general regulation for awarding costs.”
20. In Elliott, App. Proc. §575, the author says: “The appellate tribunal possesses such broad and comprehensive power to mold and frame its judgments so as to do substantial and complete justice between the parties, that it can always make such orders respecting costs and their apportionment as may seem just and equitable.” Again, in Elliott, App. Proc. §581, it is said: “As a general rule the reversal carries the costs from the first error. But the plenary power of the court to so mold its judgments as to do equity enables it to apportion the costs *53equitably, and it does not invariably adjudge costs according to the general rule stated.”
21. 22. To recapitulate: Appellants, by their appeal, prevailed only to the extent of securing a reversal of the judgment so far as it awarded appellees a foreclosure of the liens in question and attorneys’ fees thereon. As a result of the reversal, the lower court was directed to strike out all that portion of the judgment which ordered a foreclosure and allowed attorneys’ fees in favor of appellees. On the other hand, appellees prevailed in the appeal by defeating a reversal of the judgment so far as it awarded a recovery of money in their favor, other than attorneys’ fees. In order to obtain the relief which was awarded to appellants, it was not necessary for them to bring up the evidence given upon the trial below. In fact, the evidence as it appears in the record virtually consists of that which was given pro and con upon the issues in respect to the recovery of the money which appellees claimed was due and owing to them under their respective contracts. A question in regard to the modification of the judgment of the trial court, if properly presented to that court, will on appeal to the Supreme Court, if exhibited by the record, bring before the latter court for review such question or point in respect to the modification of the particular judgment or decree. Elliott, App. Proc. §327.
We therefore order (1) that the costs accruing by reason of the appeal taken by appellants, except those accruing upon their petitions for a rehearing, and also except that made on account of bringing up the evidence, be taxed to and paid by appellees; (2) that all costs made and accruing by reason of the bill or bills of exceptions embracing the evidence given upon the trial be taxed to and paid by appellants.
*54Jordan, J.It appears from the records in the office of the clerk of this court that there has been taxed by that officer, as costs against appellees in this appeal, the sum of $1,010.93 paid by appellant company to the Federal Union Surety Company as a premium for its becoming the surety of said appellant on its appeal bond executed in the prosecution of the appeal.
Appellees have filed a motion to strike out this item of cost (1) for the reason that they are not liable to pay such costs; (2) that there is no legal warrant for taxing as costs against appellees the money paid by appellant company as a premium to said surety company.
23. Appellant company bases its right to recover against appellees as costs the amount in controversy upon that part of section twenty-five which we have embraced in italics of an act entitled “An act for the incorporation of bonding or surety companies, defining their powers, prescribing the duties of certain officers in connection therewith, authorizing the acceptance of bonds made by an incorporated company, providing penalties for the violation of this act, and declaring an emergency,” approved March 2, 1901. Acts 1901 p. 63, §5761 Burns 1908. This section reads as follows: “Any receiver, assignee, guardian, committee, trustee, executor, administrator or other fiduciary, required by law or the order of any court or judge, to give a bond or other obligation as such, may include as a part of the lawful expense of executing his trust such reasonable sum paid a corporation authorized by law so to do, for becoming his surety on such bond or obligation as may be allowed by the court in which, or the judge before whom he is allowed or required to account, not exceeding one per cent per annum on the amount of such bond or obligation by such surety executed; and in all actions or proceedings the party entitled to recover costs may include therein such reasonable sum as may have been paid by him to such cor*55poration for executing or guaranteeing any bond or obligation therein.” (Our italics.)
Counsel for appellees contend that the portion of this section italicized is invalid or void, for the reason that it violates article 4, §19, of the Constitution, it being a matter not within the scope of the title, nor properly connected with nor germane to the subject expressed in the title of the act. We are of the opinion that this contention of appellees must prevail. Said section of the state Constitution provides as follows: ‘ ‘ Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.” A reading of the title of this act fully discloses that the subject thereof as expressed in the title is, “the incorporation of bonding or surety companies.”
It is evident, we think, that, under this general subject, the provision in the body of the act, awarding to a party litigant in all actions or proceedings wherein such party is entitled to recover costs the right to recover, as a part of his costs against his adversary, the amount paid by him to such corporation as a compensation for becoming his surety on his appeal bond, or other bond or obligation given by him in such actions or proceedings, is not a matter germane to, nor within the scope of, such title, nor one which can be said to have a logical connection with the legislation thereunder. A reading of this title induces one to conclude that the various provisions of the legislation proposed will relate alone to and deal with the incorporation of bonding or surety companies, and with the powers, rights and duties of such companies and the officers thereof. A person reading the title would not expect to find in the body of the act a provision relating to or regulating the recovery of costs in actions or proceedings in court.
*56It will be noted that the provision in question in no manner grants any rights to the companies organized or incorporated under the statute. It does not profess to deal with nor apply to any right or duty of the surety companies, or to any of their officers, but is confined wholly to awarding litigants in all actions or proceedings wherein they are entitled to recover costs, the right to include as a part thereof the sum which they have paid to the company for becoming their surety on any bond or obligation executed in such action or proceeding.
The conclusion must follow that the provision in question relates to a subject in no manner expressed in the title, and that it can have no logical or natural connection with the subject of the legislation as expressed in the title. The following authorities fully support our conclusion: State v. Young (1874), 47 Ind. 150; Hingle v. State (1865), 24 Ind. 28; Grubbs v. State (1865), 24 Ind. 295; Henderson v. London, etc., Ins. Co. (1893), 135 Ind. 23, 41 Am. St. 410; Mewherter v. Price (1858), 11 Ind. 199; State, ex rel., v. Commercial Ins. Co. (1902), 158 Ind. 680; State v. Bowers (1860), 14 Ind. 195; State, ex rel., v. Board, etc. (1906), 166 Ind. 162.
For the reasons which we have herein advanced, we hold that under the title of the act in question the insertion in §5761, supra, of the provisions italicized was in violation of article 4, §19, of the state Constitution, and therefore said provisions are void and of no avail to appellants.
The motion to retax is sustained at appellants’ cost, and the clerk of this court is ordered to strike out and eliminate said item of $1,010.93 from the costs taxed in this cause.