motion it would still appear that the appeal was not perfected in time. A rehearing is therefore denied. POTTER, J., concurs. Rehearing denied. BLYDENBURGH, J., being ill, did not participate. GOODRICH v. BIG HORN COUNTY BANK. APPEAL AND ERROR-RECORD INSUFFICIENT TO CONFER APPELLATE 1. Where an appeal was not perfected within the time allowed therefor, the right to appeal was lost and the Supreme Court acquired no jurisdiction of the subject matter of the case by the filing with it of such record on appeal. APPEAL from the District Court, Big Horn County; HoN. P. W. METZ, Judge. Heard on motion for leave to withdraw the record for purposes of amendment. (See former opinion, 26 Wyo. 42, 174 Pac. 191, 26 Wyo. —, 177 Pac. 134.) E. E. Enterline, Thomas M. Hyde and H. W. Rich, for plaintiffs and appellants. C. A. Zaring, Herbert V. Lacey and John W. Lacey, for defendants and respondents. BEARD, CHIEF JUSTICE. In this case a motion of appellants for leave to withdraw the record for the purpose of presenting the same to the District Court for amendment was denied August 17, 1918 (26 Wyo. 42, 174 Pac. 191), and a rehearing on that question was denied January 11, 1919 (177 Pac. 134). The object sought to be attained by the proposed amendment was to have the record on appeal show the date of the entry of the judgment and thereby show that said record was filed in the District Court within the time allowed by law in order to confer jurisdiction of the appeal on this court. The motion was resisted by respondents, and it was held that "if the record should be amended to show the entry of the judgment on the date stated in the motion, it would affirmatively appear from the record that the appeal was not perfected within the time specified and limited by the statute." On the final submission of the case, respondent's counsel maintain that upon the face of the record, and the decision of the court on the motion, the court is without jurisdiction to hear the cause. The appeal not having been perfected within the time allowed therefor, the right to appeal was lost, and this court acquired no jurisdiction of the subject matter of the case by the filing, in this court, of such record on appeal. Therefore, the appeal is dismissed. Appeal dismissed. POTTER and BLYDENBURGH, JJ., concur. PHELAN v. CHEYENNE BRICK CO. (Nos. 927, 928, 929; Decided March 29, 1920; 188 Pac. 354.) (Rehearing Denied May 28, 1920; 189 Pac. 1103.) MECHANIC'S LIENS-AGENCY-RATIFICATION OF AGENT'S ACTSPLEADING AMENDMENT TO CONFORM TO FACTS PROVEN-VARIANCE -JUDGMENT-Defect of PartIES WAIVED-CONTINUANCE-STIPULATION AS TO TESTIMONY OF ABSENT WITNESSES-LIEN STATEMENTPRESUMPTIONS-EVIDENCE-FINDINGS ON CONFLICTING EVIDENCELIEN FOR MATERIALS FURNISHED AFTER DATE FOR COMPLETION OF CONTRACT-NEW TRIAL. 1. Where materials furnished and work performed by lien claimants under contracts with a husband were for the benefit of property jointly owned by the husband and wife, a prima facie case was made that the husband was acting as the wife's agent under the express provisions of Comp. Stat. 1910, Sec. 3817. 2. Where a husband and wife decided to build a house, on a lot jointly owned by them, for a home, and the wife selected the plans and specifications, went with the husband to the architect to have the plans drawn, joined in a mortgage to obtain money for construction, and was often upon the premises as the work progressed, her conduct showed that she either authorized or ratified her husband's act in contracting for the construction of the house. 3. In suits to enforce mechanic's liens, amendments to the petitions to conform to the proof, by alleging that the defendant husband, in contracting with the principal contractors, was acting as agent for his wife as well as for himself, were properly permitted. 4. In suits to enforce mechanic's liens, there was no fatal variance between lien statements filed as though both husband and wife were parties to the contract and the contract proved, which on its face purported to be a contract between the husband and the principal contractors, where the facts showed that the plaintiff was an undisclosed principal. 5. Under Comp. Stat. 1910, 3808-3810, judgments enforcing liens of materialmen and laborers were in proper form, though they contained no personal judgment against the principal contractors, where such contractors were not served within the state and did not appear. 6. In suits to enforce mechanic's liens, if the failure to serve the amended petitions on the principal contractors operated as a discontinuance of the suits against them, and created a defect of parties defendant, the defendant owners waived the defect, and could not avail themselves of it in the Supreme Court, where it was not raised by demurrer or answer in the trial court. 7. In a suit to enforce a mechanic's lien, a stipulation, made to avoid a continuance, that an absent witness, if present, would testify that notice of the claim and of the intention to file a lien was served on defendants, of which notice a copy was attached and marked "B", constituted sufficient evidence of the notice of intention to file the lien, without formally offering the notice in evidence. 8. In a suit to enforce a lien, there was no fatal variance between a petition, alleging that brick were furnished at the agreed price and were of the reasonable value of $154 and a lien statement, alleging that they were of the fair and reasonable value of $154; the evidence showing that they were of that value. 9. A discrepancy in a lien statement as to the date materials were furnished was immaterial, where no one was misled thereby, though the statement would have been filed too late if the date mentioned therein had been the correct date. 10. That the names of the principal contractors were given in a contract for the construction of a building as D. and C. in the lien statement as Henry D. and J. M. C., and in the petition as Henry S. D. and James M. C., was immaterial, where the owners were not misled, and the contractors were described and identified in each instance as the contractors having such contract. 11. Where the petition in a suit to enforce a lien alleged the filing of a lien statement, but failed to allege that it was sworn to, an amendment curing the alleged defect was properly allowed. 12. Where the materials furnished by a lien claimant were used in the construction of a house, the labor performed was on such house, or on materials that went into it during construction, and were accepted and became a part of the house, and the materials were such as were not infrequently used in the construction of houses, and were presumptively such as were contemplated by the plans and specifications, it was immaterial whether the claimant knew of the contract between the owner and the principal con tractors. 13. Where it was not shown that materials and labor furnished by a lien claimant were not such as were contemplated by the plans and specifications for the building, the presumption was that they met the requirements of such plans and specifications, having been ordered by the contractors and used in the building. 14. Where suits to enforce liens were tried together, and in one of the suits one of the defendants testified to a written agreement between him and the principal contractors for the construction of the building, and identified it as an exhibit offered and received in one of the other cases, the failure to reoffer it in such case was immaterial. 15. Where there was a conflict in the evidence, and there was substantial evidence to support the finding, it will not be disturbed. 16. Where a contract for the construction of a building was not forfeited for failure to complete it within the time specified, one furnishing materials to the contractors thereafter, and prior to the contractors' abandonment of the contract, was entitled to a lien. 17. In a materialman's suit to enforce a lien, evidence of the dealings between plaintiff and the principal contractors was competent to show the arrangement under which the materials were furnished as against the objection that it was hearsay. 18. The failure to sustain motions to strike out evidence will not be reviewed, where it is not specified as error in the motion for a new trial. 19. A specification of error in a motion for a new trial, relating to the overruling of objections to the introduction of evidence does not cover the failure of the court to sustain motions to strike out evidence, to which no objection had been interposed. ON PETITION FOR REHEARING. 20. A district judge called in to hear a case in the Supreme Court under Const. art. 5, sec. 6, and as amended (see Laws 1917, c. 115) is a “justice" of the Supreme Court within the meaning of Const. art. 5, secs. 4, 5, providing that the justices of such court shall be elected, and that a majority shall be necessary to constitute a quorum. ERROR to the District Court, Laramie County; HoN. WILLIAM C. MENTZER, Judge. Action for the enforcement of a mechanic's lien by the Cheyenne Brick Co. and others, Frank A. Roedel and others, and the Grier Lumber Co. and others, against Walter Q. Phelan and wife. The three cases were consolidated for trial by stipulation of counsel; there were judgments for plaintiffs in each case and defendants bring error. The material facts are stated in the opinion. Ray E. Lee, for plaintiffs in error. The cases were consolidated for error proceedings and are discussed in one brief; the amended petition in the Roedel case did not allege the finding of a lien claim and is defective (3803 C. S.; 27 Cyc. 386; Halligan v. Herbert, 2 Daly 253: Jones on Liens, 1588). There is no evidence showing this plaintiff had knowledge of the contract in evidence and this constitutes a failure of proof (Rockel M. L. 24-27: 3799 C. S.; Phillips M. L. 60-62; Foster v. Swayback, 58 Ill. App. 581; Garnett v. Berry, 3 Mo. App. 205: Merritt v. Crane Coal Co., 126 Ill. App. 337). In the Cheyenne Brick Company case there was no proof of notice of intention to file lien as required by statute (3815 C. S.; 27 |