Chicago, etc., R. Co. v. Wysor Land Co. the record, and can not be considered. Riley v. Allen (1900), 154 Ind. 176, and cases cited; Thompson v. Thompson (1901), 156 Ind. 276; 2 Woollen, Trial Proc., 928; Ewbank's Manual, $28. Conceding, without deciding, that the record shows the instructions given were properly filed, as it does not show that it contains all the instructions given, no question concerning instructions given or refused is presented for decision. Lake Erie, etc., R. Co. v. Holland (1904), 162 Ind. 406; Board, etc., v. Gibson (1902), 158 Ind. 471, 489, 490; State v. Winstandley (1898), 151 Ind. 495, and cases cited; Barton v. State (1900), 154 Ind. 670, 671. Appellant insists that the amount recovered was too large, and that the verdict is not sustained by sufficient evidence, and is contrary to law. There was a conflict in the testimony as to the value of the real estate before and after the appropriation, but there is evidence which supports the amount of damages assessed. We could not, therefore, disturb the verdict without weighing the evidence, which we have no power to do. Several other rulings of the trial court were assigned as causes for a new trial and argued in appellant's brief, but neither the part of the record necessary fully to present the error relied upon nor a concise statement thereof is set forth in appellant's brief, as required by clause five of rule twenty-two of this court. Under rule twenty-six of this court, in force until November 26, 1900, when the new rules took effect, it was uniformly held that when a party failed to comply with said rule by citing the pages and lines of the record showing the ruling of the court claimed to be erroneous, he waived the error, if any was committed, and the court would not search the record therefor. Siberry v. State (1896), 149 Ind. 684, 689; McCaslin v. Advance Mfg. Co. (1900), 155 Ind. 298, 306, and cases cited; State v. Winstandley, supra, and cases cited; Ewbank's Manual, $183; Elliott, App. Proc., §440; Remy's Knowlton v. Smith. Indiana Digest, §§490-492, pp. 55, 56. Rule twenty-two, among other things, requires that a succinct statement of the record, fully presenting every error and exception ruled upon, shall be set forth in the brief of the complaining party, referring to the pages and lines of the transcript. This court, following the cases above cited, has held that said rule twenty-two requires that the briefs be so prepared that all the questions presented by the assignment of errors can be determined from an examination of the briefs without looking at the record, and that to the extent said rule is complied with the errors assigned will be determined and the others will be considered waived. McElwaine-Richards Co. v. Wall (1902), 159 Ind. 557, 559; Cleveland, etc., R. Co. v. Stewart (1903), 161 Ind. 242; Perry, etc., Stone Co. v. Wilson (1903), 160 Ind. 435; Pittsburgh, etc., R. Co. v. Wilson (1904), 161 Ind. 701. We have, however, examined the record as to said questions, and, after a careful consideration thereof, find that the same does not show that any reversible error was committed against appellant. Judgment affirmed. KNOWLTON v. SMITH. [No. 20,396. Filed October 4, 1904.] APPEAL AND ERROR.-Amount in Controversy.-Where an action is brought to enforce a mechanic's lien, and the amount recovered was $42.50 exclusive of costs, an appeal lies to the Appellate Court notwithstanding Acts 1903, p. 280, regulating appeals to the supreme and appellate courts. pp. 296-298. STATUTORY CONSTRUCTION.-Acts 1903, p. 280.-Section 1337f Burns 1901 (Acts 1901, p. 565, 26), providing that "no appeal shall hereafter be taken to the Supreme or to the Appellate Court in any civil case which is within the jurisdiction of a justice of the peace, except as provided in section eight of this act," and section eight, providing in substance that appeals will lie in all cases where there is brought in question the validity of a franchise, or of an ordinance, the constitutionality of a statute, state or federal, or the construction of a statute, as amended by the act of 1903 (Acts 1903, p. 280), providing that "no Knowlton v. Smith. appeal shall hereafter be taken to the Supreme Court or Appellate Court in any civil case where the amount in controversy, exclusive of interest and costs, does not exceed $50, except as provided in section eight of this act," do not deny the right of appeal in an action to foreclose a mechanic's lien where the amount of recovery was only $42.50, since the gravamen of such action is the foreclosure of the lien, and such judgment was appealable under the Act of 1901, the purpose of the amendment being to broaden the right of appeal and not to abridge it. pp. 298-300. JUDGMENT.-Setting Aside Default.-Notice.-Where the defendant resided in P. township, and he was served by leaving a copy at the residence of W. at the town of D., which was not his residence, and a judgment by default taken against him without any actual notice, and the defendant upon learning of said judgment, at the same term of court filed his affidavit to set aside such judgment, setting out such facts together with a meritorious, defense thereto, he shows a good cause of "excusable neglect" under 2399 Burns 1901, providing for setting aside judgments by default in case of accident, surprise, or excusable neglect, at any time within two years. pp. 299-301. From Jay Circuit Court; J. M. Smith, Judge. Action by John W. Smith against Charles F. Knowlton to foreclose a mechanic's lien. From a decree for plaintiff, the defendant appeals. Transferred from Appellate Court under §1337u Burns 1901. Reversed. J. J. Moran, for appellant. 0. H. Adair and J. F. La Follette, for appellee. JORDAN, C. J.-Appellee instituted an action in the Jay Circuit Court in February, 1903, against appellant to foreclose a mechanic's lien for work and labor performed on a certain building and fence situated in Dunkirk, Jay county, Indiana. Appellant failed to appear to the action, and on March 3, 1903, a judgment was rendered against him on default for $42.50, and a foreclosure of a mechanic's lien was decreed against the property described in the complaint. On the 22d day of March, 1903, at the same term of court, he filed his duly verified complaint to set aside the default, and to be relieved of the judgment which had been rendered against him. The application was based on $399 Burns 1901, §396 Horner 1901, which provides, Knowlton v. Smith. among other things, that the court "shall relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect," etc. Upon hearing the complaint, the court denied the prayer thereof, and refused to set aside the default, or in any manner to relieve appellant from the judgment rendered. He appeals, and seeks a review of the action of the court in denying him relief. At the very threshold we are confronted with a motion upon the part of appellee to dismiss this appeal on the ground that the judgment rendered upon the default, exclusive of interest and costs, does not exceed $50, and therefore the appeal is forbidden by the provisions of an act of the legislature approved and in force March 9, 1903 (Acts 1903, p. 280). By this act, section six of an act approved March 12, 1901 (Acts 1901, p. 565, §1337f Burns 1901), was amended. Said section, as originally enacted, provided that "no appeal shall hereafter be taken to the Supreme Court or the Appellate Court in any civil case which is within the jurisdiction of a justice of the peace except as provided in section eight of this act." By the amendatory act of 1903, section six was changed to read as follows: "No appeal shall hereafter be taken to the Supreme Court or Appellate Court in any civil case where the amount in controversy, exclusive of interest and costs, does not exceed $50, except as provided in section eight of this act.” By the provisions of section eight-the same being $1337h Burns 1901-all cases which fall within the prohibition of section six as originally enacted, and as it now stands since the amendment thereof, were, and are now, excepted therefrom in the following cases: Where there is a question duly presented involving either the validity of a franchise, or the validity of an ordinance of a municipal corporation, or the constitutionality of a statute, state or federal, or the proper construction of a statute. Such Knowlton v. Smith. cases, under section eight, are made exceptions to section six, and appeals therein are permitted to be taken direct to the Supreme Court, but, as section eight declares, "for the purpose of presenting such questions only." Under the plain provisions of section six, as originally enacted, an appeal was denied in any case which came within the jurisdiction of a justice of the peace, unless it fell within some of the exceptions enumerated in section eight. The gravamen of the action wherein appellant was defaulted was to foreclose a mechanic's lien. That was the paramount issue, and the essential relief sought and obtained. Ascertaining the amount due to the plaintiff in the action for the work and labor performed upon the building and fence, and rendering judgment thereon, was but incidental to the principal relief demanded and secured, viz., the foreclosure of a mechanic's lien. Field v. Brown (1896), 146 Ind. 293, and cases cited. Of course, in order to obtain a foreclosure of the lien, it was necessary for the plaintiff to be awarded a recovery at least of a part of the indebtedness secured thereby. An action to enforce a mechanic's lien is in the nature of a suit to foreclose a mortgage, and, under the laws of this State, is not one which comes within the jurisdiction conferred upon a justice of the peace. Ainsworth v. Atkinson (1860), 14 Ind. 538; Snell v. Mohan (1872), 38 Ind. 494; Albrecht v. C. C. Foster Lumber Co. (1890), 126 Ind. 318, and cases cited. In fact, an action to foreclose a mechanic's lien is, under the statute, exclusively lodged in the circuit or superior court. $7259 Burns 1901. As jurisdiction to foreclose the lien in controversy was not within that conferred upon the justice of the peace, the right of appeal was not affected by the provisions of section six (§1337f, supra), as originally passed, therefore the case at bar belonged to the appealable class at and after the enactment of that section. Having reached this conclusion, the question then arises, |