termined by the court on the application for the appointment of commissioners. Toledo, S. & M. R. Co. v. Campau, 83 Mich. 33. For a note upon the filing of maps and profiles in condemnation proceedings, see ante p. 36. Right to Open and Close in Condemnation Proceedings. In Texas in a proceeding by a railroad company to condemn a right of way, where the landowner makes no admission that the company has a good cause of action as set forth in its petition, it is error to allow the landowner to open and close the evidence and the argument, and because of such error, the judgment will be reversed. Gulf, C. & S. F. R. Co. v. Ross (Texas Ct. of App., April 23, 1890), 16 S. W. Rep. 536. In seeking to condemn land, the party seeking condemnation, and not the owner of the land, is the party upon whom the burden of proof rests, and is the party entitled to open and conclude the argument. Fort Worth, & R. G. R. Co. v. Culver (Texas Ct. of App., Oct. 23, 1889), 14 S. W. Rep. 1013. Costs in Condemnation Proceedings "Action."-In Wisconsin, it is held that under Rev. St. Wis. 1878, chap. 129, awarding costs to a party in an "action," a proceeding by a railroad company to condemn lands is not such an action," and the landowner who successfully resists such proceeding is not entitled to costs for his expenses in defending it. Wisconsin Cent. R. Co. v. Kneale (Wisconsin, Feb. 24, 1891), 48 Ñ. W. Rep. 248. The court said: “It would seem reasonable that the respondent should be compensated to some extent for his trouble and expenses in defending against the claim of the company, but the right to recover costs in any action or proceeding is a statutory right, and not a common law right. See In re Carroll's Will, 53 Wis. 228; Potts 7. Cooley, 56 Wis. 49; Baker v. State, 69 Wis. 42. If, therefore, the statutes in regard to costs do not apply to a case of this kind, the court had no power to award them to the respondent. There is nothing in the act which regulates these proceedings which awards costs to the successful party, or to either party. The only other general statute declaring when costs may be awarded to a party is chapter 129, Rev. St. 1878. This chapter only awards costs to a party to an action. Is the proceeding by the railroad company to condemn lands for its use an action within the meaning of said chapter? This question has been answered by this court in the negative. Cornish v. Milwaukee & L. W. R. Co., 60 Wis. 476, 17 Am. & Eng. R. Cas. 142; Wisconsin Cent. R. Co. v. University. 49 Wis. 162; Milwaukee & N. R. Co. v. Strange, 63 Wis. 182, 20 Am. & Eng. R. Cas. 413. These cases hold that a proceeding to condemn land by a railroad company is a special proceeding, and not an action, within the meaning of our laws in regard to actions and costs in such actions. We find no statute which authorizes the awarding of costs in special proceedings, unless it be in cases when such special proceedings are auxiliary to, or in some way connected with, an action at law or in equity, such as attachment, replevin proceedings, garnishment, or supplementary proceedings, or unless the statute giving the special proceeding authorizes the awarding of costs. The statute having omitted to provide for awarding costs in a proceeding of this kind, the court has no right to award them Same-Offer of Company to Confess Judgment for Part of Amount Claimed. -In Kansas, after a landowner appeals from the award of commissioners appointed to condemn real estate for the right of way of a railroad company, the proceeding in the district court becomes a civil action, and the railroad company may offer, under the provisions of § 528 of the Civil Code, to confess judgment for a part of the amount claimed; and if the landowner refuses to accept such confession of judgment in full of his demands, and upon the trial does not recover more than was so offered, he must pay all the costs of the railroad company incurred after the offer. Chicago, I & K. R. Co. v. Townsdin (Kansas, April 11, 1891), 26 Pac. Rep. 427. FARMERS' LOAN & TRUST CO. v. CANADA & ST. LOUIS R. Co. (127 Indiana, 250.) Mechanic's Lien-Action to Enforce-When Parties are Bound by Decree. -In an action to enforce a mechanic's lien against a railroad, the case was submitted for trial with an agreement to allow all defenses to be given in evidence. The court made a finding that the road ought to be sold free from incumbrances to pay its indebtedness, and that the proceeds should be brought into court, with leave to all lien holders to establish their claims and their priority as a lien upon the proceeds, and that the rights of such lien holders ought to be transferred to the fund arising from the sale, followed by a reservation that the court reserves the determination of the amount of the several claims and liens, and their priority. These findings were followed by a final decree. Held, that this could not be considered as an interlocutory decree, and the parties were conclusively bound thereby. Who are Sub-Contractors Within Meaning of Lien Law.-A laborer working by the day or a material man who delivers ties or lumber for the construction of a railroad, is not a sub-contractor within the meaning of the Indiana lien law. Payment of Sub-Contractors-Material Men and Laborers-Tender.-A subcontractor is bound to accept payment as provided in the contract with his principal; but if a proper tender is not made to him of the article in which he is to be paid, he may maintain an action for a money judgment. Material men and laborers, however, are not bound to accept anything in payment except money, whatever may be the contract between the contractor and the principal. Sale of Railroad to Enforce Mechanic's Lien-Road as Entirety.-A continuous line of railroad is to be treated as an entirety and must be sold as such for the enforcement of a mechanic's lien. Acquisition of Mechanic's Lien-Filing Notice in one County Only.Although in enforcing a mechanic's lien a railroad must be sold as an entirety, it is not necessary that the lien should be acquired on every part of it. If the claimant does what the statute requires he obtains the lien; and by filing such a notice as the law requires in the county where the material was furnished or the work done, his lien extends to the entire line of the road in the state. In case of a sale of the road and a transfer of the lien to that fund derived by the sale by order of the court, the lien is transferred to the whole fund and not to a part of it. Mortgage Priority of Mechanic's Lien-Bona Fide Holder. A mortgage of a railroad not yet built issued to raise money for construction, is junior to a mechanic's lien acquired in furnishing material for, or performing labor upon such railroad, which gave all there was of value to the property claimed under the mortgage, unless it is affirmatively shown that the holder of the mortgage bonds, which were assigned by the construction company, paid value for them before notice of such lien, and are in fact bona fide holders. Distribution of Insufficient Fund Among Lien Holders-Right of Holder of General Lien to Question.-Where a fund in court is insufficient to satisfy all specific liens, a creditor having only a general equitable lien cannot complain because one of the specific lien holders is decreed a greater part of the fund than he is entitled to as against other specific lien holders. Same-Lien Payable out of Specific Part of Fund.-A mechanic holding a lien who was awarded his full claim out of a fund in court, cannot complain because it was not made payable out of the allowance made to another claimant of a part of the fund. How Fraud Must be Found -Badges of Fraud.-Fraud must be found and stated in a special finding as an inferential and ultimate fact, and it is not enough to state the badges or evidences of fraud. APPEAL from Elkhart Circuit Court. W. L. Stonex, H. A. Gardner, and Gardner, McFadon & Gard ner, for appellant. E. E. Mummert, Wilson & Davis, Osborne & Zook, Vesey & Miller and Baker & Baker, for appellees. ELLIOTT, J.-The appellant asserts a prior lien upon a fund derived from the sale of a railroad owned by the Canada & St. Louis Railway Company, and the ap Case stated. pellees, other than the railway company, contest the claim of the appellant, asserting that they hold prior liens under the lien laws of this state. By motion in arrest of judg ment, the appellant attempts to challenge the counter claims or cross complaints filed by the mechanics, material men, and laborers. Whether this attempt can prevail .depends upon the effect of a decree made during the progress of the case. The recitals of the record material to the immediate point in dispute are these: "And now comes the plaintiff, and come also the defendants and cross complainants, and by agreement of parties, it is ordered that said complaint, and each of said cross complaints, shall be heard and determined by the court without pleadings or answers, the same as though each complaint and cross complaint had been fully and formally answered unto by said respective defendants therein, and it is agreed that all matters of defense, set-off, counter claim, and reply may be given in evidence, by any party against any other party, without further pleadings. And thereupon said complaint and cross complaints being at issue, under the agreement aforesaid, the same are severally submitted to the court for trial by agreement of all the parties; and the court, having heard the evidence, and being sufficiently advised in the premises, finds that the Canada & St. Louis Railway Company is indebted to said plaintiff in the sum of two hundred thousand dollars and more; that said plaintiff and said several cross complainants have and hold liens on said railway and its property and franchises for money due and owing for the right of way, for work and labor, for materials furnished, and by virtue of a mortgage executed by it to the Farmers' Loan & Trust Company of New York." We have no doubt that the agreement of the parties and the decretal order cut Ind. toppel to con. off a motion in arrest of judgment. Where parties agree that pleadings are sufficient, they cannot afterward make any question upon them, except the question Sufficiency of of jurisdiction of the subject. There is here an pleading-Es. express agreement that the "complaint and cross test. complaints shall be heard and determined by the court," and, in the face of this agreement, the appellant cannot, after a final hearing, challenge the sufficiency of the cross complaints. Not only is there an express agreement to the effect stated, but there is also an agreement dispensing with further pleadings, and submitting the cause to the court for trial; thus clearly waiving all objections to the pleadings. This agreement was carried into effect by a trial pursuant to the agreement of the parties, and a judgment deciding the questions submitted to the court. Even in the absence of an express agreement, the voluntary submission of a cause for trial waives the failure to file pleadings forming an issue. June 7. Payne, 107 Ind. 307; City of Warsaw v. Dunlap, 112 Ind. 576, 18 Am. & Eng. Corp. Cas. 263; Hartlep v. Cole, 101 458; Johnson v. Briscoe, 92 Ind. 367; Hege v. Newsom, 96 Ind. 426; Chambers v. Butcher, 82 Ind. 508; Lewis v. Bortsfield, 75 Ind. 390; Felger v. Etzell, Id. 417. The principleasserted in the cases cited fully authorizes our conclusion that the appellant is precluded from attacking the pleadings; that principle would, indeed, warrant us in going much further than it is necessary or proper for us to do in this instance. The decree from which we have copied is conclusive upon the parties, in so far as it adjudges that they are each and all holders of liens against the railroad. This appears in the extract we have already copied from the decree, and it is made still clearer by the recital, ties.. which reads thus: "And the court further finds that the Canada & St. Louis Railway, with all its rights of way, roadbed, depots, depot grounds, and all of its rights, franchises, and property, ought to be sold to make assets to pay its indebtedness and liabilities; and that the proceeds of said sale ought to be brought into court, with leave to all parties herein, and all other lienholders who may come in and become parties to the proceedings before the final hearing thereof, to establish their several claims, demands, and liens, and the respective lien of each, and the priority of the same, as a lien upon the proceeds of said sale. And the court further finds that said railroad property ought to be sold free and discharged of all liens and incumbrances, and the rights of all such lienholders and creditors ought to be transferred to the fund arising from such sale." These provisions of themselves make it plain that the court found that all the par 47 A. & E. R. Cas.-18 Decree bind ing upon par ties in court at the time the decree was entered were the holders of liens, but, if these provisions left any doubt upon the question, it would be removed by a provision in a subsequent part of the decree, which reads as follows: "And the court hereby reserves for its future consideration the consideration and determination of the amount of said claims and liens, and the respective lien of each, and the priority of the same as a lien upon the proceeds of the sale." One question is settled by this decree, namely, that all the parties have liens. Two questions are left undetermined, namely, the amount of the respective liens, and their priority. This decree was not ob jected to in any mode, but, on the contrary, was acquiesced in by the parties, and, as it was made upon a trial pursuant to the express agreement of the parties, it is conclusive upon. them as to the questions tried and determined. It is said that the decree is interlocutory, and therefore not conclusive. We are not inclined to regard it as a mere interlocutory decree, inasmuch as it was made after the submission of the cause for trial, and after hearing the evidence, and is, in its nature, final, rather than interlocutory. It may not, perhaps, be true that it is final in such a sense as that an appeal would lie from it; but it has in many respects the qualities and effect of a final decree. But conceding, for the sake of the argument, that it is a mere interlocutory decree, still it must be held that as to this case, and upon the questions submitted for trial, and after trial fully adjudicated, it is final and conclusive. Ray v. Law, 3 Cranch (U. S.), 179; Morey v. King, 49 Vt. 304. In the case of Fleenor v. Driskill, 97 Ind. 27, this doctrine is carried much beyond the limits to which we carry it in this instance. We add, to prevent misconception, that we neither hold, nor mean to hold, that the decree in this instance was beyond change by the court while the proceedings were in fieri, nor do we hold that it would have constituted a conclusive adjudication had no final decree been rendered. All that we can with propriety decide is that, as to this particular case, it is conclusive because rendered after trial, and followed, without change, by a final decree. The questions which remain for decision are those not adjudicated by the decree which we have considered and to contractors. which we have given a construction. The first of Who are sub- these questions arises upon the contention of the appellant that the appellees are subcontractors, and as such are bound to take payment in bonds for the reason that the principal contractors agreed to accept bonds in payment. It is probably true that one who in strictness occupies the position of a subcontractor is bound to accept payment as provided in the principal contract. Stewart v. |