The abstract states that all the evidence introduced on the trial is contained therein. But there was no evidence tending to prove 1. That defendant owned the premises described in the petition; 2. The quantity of lime or how much was used in the construction of the church; and 3. The filing of the claim for a lien in the clerk’s office. The appellee, however, insists that no evidence as to any of these matters was required, because they were either admitted or not specifically denied in the answer. •This question first demands our attention.
I. As to the ownership of the premises. The petition alleges the lime was used in erecting a building * * upon lots nine (9) and ten (10), in block nineteen (19), in East Fort Dodge.’’ The answer denies “each and every allegation of the petition except as admitted.” But it also states that the lime “ was used in the construction of defendant’s church, as set forth in the petition.” This is an admission that defendant owned the property described in the petition.
II. As to the quantity of lime, this is specifically alleged in the petition. The answer states that plaintiff was indebted to one Brainard, which it was agreed should be paid in lime at the market price, and that in pursuance of said agreement the lime in question was delivered on the order of said Brainard. “That said lime was received from plaintiff by defendant on account of said Brainard, and not otherwise.” The “lime in question ” was *707that described and referred to in the petition, and it should he taken as an admission that the quantity of lime was not disputed, but simply whether the plaintiff was to look to Brainard or the defendant for payment.
III. As to the filing of a mechanic’s lien. It should be borne in mind that no motion for a more specific statement, or other objection was made to the sufficiency of the petition before the trial in the court below. Under such circumstances we think it sufficiently appears from the petition and exhibit made apart thereof that a claim for a mechanic’s lien was duly made and properly filed in the clerk’s office. The answer denies that plaintiff is entitled to a mechanic’s lien, but this does not amount to a denial that one was filed. Each allegation in the petition, however, is denied except as admitted, and the answer then ‘ ‘ alleges that said mechanic’s lien is wrongful, and ought to be removed as being a cloud on defendant’s title,” and the cancellation thereof is asked.
This, we think, amounts to an admission that the lien had been filed. Por it could not be a cloud on defendant’s title unless such had been the case. Beside this the existence of the hen is admitted, and there cannot be a lien unless it had been filed. Take the whole record together we are strongly impressed that the only matter litigated, or'intended so to be, was as to who was to pay for the lime, Brainard or the defendant. To that point the evidence on both sides was directed, and there is nothing to indicate the foregoing questions were ever brought to the attention of the court below, and we are inclined to think they have been raised for the first time in this court.
IV. It is urged that the rendition of a personal judgment against the defendant is erroneous because no such relief is asked in the petition. That the prayer for judgment is inartistically drawn there is no doubt, but that it asks for some relief there can be no question. Whether it in plain and direct terms asks for a personal judgment against the defendant is exceedingly doubtful. But no objection as we have said was made as to the sufficiency of the petition before the trial. It is probable this objection would have been premature before the trial, but not so as to a motion in arrest after the trial.. Such a motion is expressly authorized. Code, § § 2650, 2842, 2843. Had it been made in the court below, the petition could have been amended so as to avoid or remedy the defect. Code, § 2842. As no such motion was made this objection comes too late.
V. We do not understand counsel to claim that this cause is triable de novo in this court, because no such claim is specifically made and errors are assigned, among which are that the finding and judgment are against the evidence. If triable anew here the assignment of such an error would be unnecessary and out of place. The abstract fails to show any compliance whatever with the requirements of section 2742 of the Code, and we have repeatedly held this must be shown before a trial de novo can be had in this court. The finding, therefore, has the force and effect of a verdict of a jury, and there is not such an absolute want of evidence in support of the judgment as to indicate passion or prejudice of the judge before whom the cause was tried. The most that can be said the evidence was conflicting, and we are by no means sure it docs not preponderate in favor of the plaintiff. The rule is well established that under such circumstances we cannot reverse the judgment.
Affirmed.