MR. CHIEF JUSTICE BRANTLY,
after stating the case, delivered the opinion of the Court.
1. The brief filed in this cause by counsel for appellants fails almost entirely to meet the requirements of Section 3 of Rule X. This section (subdivision “c”) requires “a brief of the argument exhibiting a clear statement of the points of law or fact to be discussed, with a reference to the page of the record, and the authorities relied upon in support of each point.” Appellants’ brief, after a specification of 13 errors [70]*70as grounds for a reversal of the judgment, discusses briefly the demurrer interposed to the original complaint, and the insufficiency of the evidence to support the finding of the trial court, and then proceeds: “We will respectfully submit the following authorities, which we think are applicable to the demurrer, motion for nonsuit, and motion to strike lien, hereinbefore referred to; also, other assignments of error.” Then follow citations of authorities, without any attempt to apply or refer them, in a consecutive or orderly way, to any of the errors assigned. In order to consider the points thus sought to be m'ade by counsel, it would be necessary for us to sort out the authorities, refer and apply them to the appropriate assignments, and thus determine whether there is merit in appellants’ contentions. This task we must decline to undertake. The duty of counsel under the rule has been „ noticed and emphasized so often (Beck v. O’ Connor, 21 Mont. 109, 53 Pac. 94; Babcocks. Caldwell, 22 Mont. 460, 56 Pac. 1081; Gibson v. Hubbard, 22 Mont. 517, 57 Pac. 88) that it should not be necessary to revert to it again. If counsel cannot present their contentions in a clear and orderly way, it were better to leave them unnoticed in the brief; for this Court will not undertake the labor which counsel should perform.
2. Omitting consideration of any of the matters just mentioned, Ave pass to the examination of the o,nly question fairly presented in appellants’ brief. The court below found generally that ‘ ‘all the averments of the complaint are true. ’ ’ This general finding necessarily includes a finding as true of the essential averment that the plaintiff filed with the clerk of Flathead county, within 90 days from the time the materials were furnished, its claim of lien, sufficient in substance to meet the requirements of the statute (Section 2131, Code of Civil Procedure.) Appellants contend that the proof on this point does not support the finding. Whether this is so depends first upon whether the last two items charged in the account on January 23, 1896, were furnished for, and used in, the construction of the O’Donnell house. These items are shingle nails and one flue stop, charged at 25 and 15 cents, [71]*71respectively. The last charge made upon the account prior to January 23d, was on January 10th. This is made up of two items, — tin shingles and a piece of tin, — amounting to 65 cents. The claim of lien was filed on April 17th. Computing the 90 days from January 23d, the claim was filed in time (Helena Steam Heating & Supply Co. v. Wells, 16 Mont. 65, 10 Pac. 78); but, taking January 10th as the date of the last item, the filing was after the expiration of 90 days, and therefore too late. A flue stop, such as the article charged here, is not a lienable article. One of the witnesses speaks of it as a “movable fixture of a house.” The proof shows that it is a cover for a stovepipe flue opening into the chimney from the interior of the house, but removable at pleasure when the flue is to be used. It is, therefore, not such material as enters into the structure of a building; nor is it a fixture, within the meaning of the statute (Section 2130, Code of Civil Procedure, and Section 1076 of the Civil Code), so as to be the subject of a lien. (Boisot, Mech. Liens, Sec. 96.) But, waiving the question of the lienable character of this item, we think the proof fails to show chat either it or the nails were furnished for and used in the house. The plaintiff offered proof tending to show that E. C. O’Donnell contracted with H. C. Keith, the manager of the plaintiff, for the furnishing of the hardware for the building. The books of plaintiff show these items charged to E. C. O’Donnell on January 23d. This account was kept separate from the other accounts of O’Donnell. Some time in the spring of 1896 O’Donnell examined the account, and “did not object to it, — said it was all right.” He also promised to pay it. This proof is not sufficient to show that the articles were either furnished for, or entered into, the building, — unaided, as it is, by any direct proof, or by some such circumstances as that the work was still in progress, and was of such character as to require such materials, and that they were delivered at the building. Furthermore, the other proof tends to show, without contradiction, that the last work done on the building was on January 10th. On this day one of the workmen topped the chimney, and laid around it a [72]*72few tin shingles, to make the proper joining to the roof, which was then otherwise completed. The house, in its unfinished state, was .immediately occupied by the O’Donnells, and was not completed until after the sale to Johanna Peterson, in July. There is no proof tending to show that any work was done after the house was occupied, or that any material was used in it. The Petersons lathed and plastered the house, and finished it in other respects, after they purchased it. These facts seem to us conclusive upon this point. The burden is upon the plaintiff to establish his lien (Boisot, Mech. Liens, Sec. 618), and, to support this burden, he must show, not only that he furnished the materials, but also that they were used for the enhancement of the property to which he claims he has a right to resort as security for the debt thus created. In the absence of this showing, his equity does not arise. [Silvester v. Mine Co., 80 Cal. 510, 22 Pac. 217; Weir v. Barnes, 38 Neb. 875, 57 N. W. 750; Chapin v. Paper Works, 30 Conn. 461; Hunter v. Blanchard, 18 Ill. 318; Taggard v. Buckmore, 42 Me. 77; Shulenberg v. Prairie Home Institute Co., 65 Mo. 295.) This is evidently the meaning of the statute (Section 2130 of the Code of Civil Procedure).
Furthermore, to establish a lien against any interest of Mrs. O’Donnell in the property in controversy, — which is the purpose of this suit, —the recorded claim of plaintiff is insufficient, in omitting to state her name as the owner, or that she was in any way interested therein. The general rule is that, whenever the particular statute requires the claim to contain the name of the owner or reputed owner, the omission of this detail is fatal to the lien. (Phillips, Mech. Liens, 345, and cases cited.)
Section 2131 of the Code of Civil Procedure provides that the claim shall contain a just and true account of the amount due, after allowing all creclits, and a correct description of the property to be chai'ged. . Looking to this provision alone, we should perhaps hold that it is not necessary to set forth the name of the owner. But the following section (section 2132) provides that the county clerk shall make, in a book kept for [73]*73that purpose, an abstract containing (1) the date of the filing; (2) the name of the person holding the lien; (3) the amount thereof; (4) the name of the person against whose property the lien is filed; and (5) a description of the property to be charged.
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MR. CHIEF JUSTICE BRANTLY,
after stating the case, delivered the opinion of the Court.
1. The brief filed in this cause by counsel for appellants fails almost entirely to meet the requirements of Section 3 of Rule X. This section (subdivision “c”) requires “a brief of the argument exhibiting a clear statement of the points of law or fact to be discussed, with a reference to the page of the record, and the authorities relied upon in support of each point.” Appellants’ brief, after a specification of 13 errors [70]*70as grounds for a reversal of the judgment, discusses briefly the demurrer interposed to the original complaint, and the insufficiency of the evidence to support the finding of the trial court, and then proceeds: “We will respectfully submit the following authorities, which we think are applicable to the demurrer, motion for nonsuit, and motion to strike lien, hereinbefore referred to; also, other assignments of error.” Then follow citations of authorities, without any attempt to apply or refer them, in a consecutive or orderly way, to any of the errors assigned. In order to consider the points thus sought to be m'ade by counsel, it would be necessary for us to sort out the authorities, refer and apply them to the appropriate assignments, and thus determine whether there is merit in appellants’ contentions. This task we must decline to undertake. The duty of counsel under the rule has been „ noticed and emphasized so often (Beck v. O’ Connor, 21 Mont. 109, 53 Pac. 94; Babcocks. Caldwell, 22 Mont. 460, 56 Pac. 1081; Gibson v. Hubbard, 22 Mont. 517, 57 Pac. 88) that it should not be necessary to revert to it again. If counsel cannot present their contentions in a clear and orderly way, it were better to leave them unnoticed in the brief; for this Court will not undertake the labor which counsel should perform.
2. Omitting consideration of any of the matters just mentioned, Ave pass to the examination of the o,nly question fairly presented in appellants’ brief. The court below found generally that ‘ ‘all the averments of the complaint are true. ’ ’ This general finding necessarily includes a finding as true of the essential averment that the plaintiff filed with the clerk of Flathead county, within 90 days from the time the materials were furnished, its claim of lien, sufficient in substance to meet the requirements of the statute (Section 2131, Code of Civil Procedure.) Appellants contend that the proof on this point does not support the finding. Whether this is so depends first upon whether the last two items charged in the account on January 23, 1896, were furnished for, and used in, the construction of the O’Donnell house. These items are shingle nails and one flue stop, charged at 25 and 15 cents, [71]*71respectively. The last charge made upon the account prior to January 23d, was on January 10th. This is made up of two items, — tin shingles and a piece of tin, — amounting to 65 cents. The claim of lien was filed on April 17th. Computing the 90 days from January 23d, the claim was filed in time (Helena Steam Heating & Supply Co. v. Wells, 16 Mont. 65, 10 Pac. 78); but, taking January 10th as the date of the last item, the filing was after the expiration of 90 days, and therefore too late. A flue stop, such as the article charged here, is not a lienable article. One of the witnesses speaks of it as a “movable fixture of a house.” The proof shows that it is a cover for a stovepipe flue opening into the chimney from the interior of the house, but removable at pleasure when the flue is to be used. It is, therefore, not such material as enters into the structure of a building; nor is it a fixture, within the meaning of the statute (Section 2130, Code of Civil Procedure, and Section 1076 of the Civil Code), so as to be the subject of a lien. (Boisot, Mech. Liens, Sec. 96.) But, waiving the question of the lienable character of this item, we think the proof fails to show chat either it or the nails were furnished for and used in the house. The plaintiff offered proof tending to show that E. C. O’Donnell contracted with H. C. Keith, the manager of the plaintiff, for the furnishing of the hardware for the building. The books of plaintiff show these items charged to E. C. O’Donnell on January 23d. This account was kept separate from the other accounts of O’Donnell. Some time in the spring of 1896 O’Donnell examined the account, and “did not object to it, — said it was all right.” He also promised to pay it. This proof is not sufficient to show that the articles were either furnished for, or entered into, the building, — unaided, as it is, by any direct proof, or by some such circumstances as that the work was still in progress, and was of such character as to require such materials, and that they were delivered at the building. Furthermore, the other proof tends to show, without contradiction, that the last work done on the building was on January 10th. On this day one of the workmen topped the chimney, and laid around it a [72]*72few tin shingles, to make the proper joining to the roof, which was then otherwise completed. The house, in its unfinished state, was .immediately occupied by the O’Donnells, and was not completed until after the sale to Johanna Peterson, in July. There is no proof tending to show that any work was done after the house was occupied, or that any material was used in it. The Petersons lathed and plastered the house, and finished it in other respects, after they purchased it. These facts seem to us conclusive upon this point. The burden is upon the plaintiff to establish his lien (Boisot, Mech. Liens, Sec. 618), and, to support this burden, he must show, not only that he furnished the materials, but also that they were used for the enhancement of the property to which he claims he has a right to resort as security for the debt thus created. In the absence of this showing, his equity does not arise. [Silvester v. Mine Co., 80 Cal. 510, 22 Pac. 217; Weir v. Barnes, 38 Neb. 875, 57 N. W. 750; Chapin v. Paper Works, 30 Conn. 461; Hunter v. Blanchard, 18 Ill. 318; Taggard v. Buckmore, 42 Me. 77; Shulenberg v. Prairie Home Institute Co., 65 Mo. 295.) This is evidently the meaning of the statute (Section 2130 of the Code of Civil Procedure).
Furthermore, to establish a lien against any interest of Mrs. O’Donnell in the property in controversy, — which is the purpose of this suit, —the recorded claim of plaintiff is insufficient, in omitting to state her name as the owner, or that she was in any way interested therein. The general rule is that, whenever the particular statute requires the claim to contain the name of the owner or reputed owner, the omission of this detail is fatal to the lien. (Phillips, Mech. Liens, 345, and cases cited.)
Section 2131 of the Code of Civil Procedure provides that the claim shall contain a just and true account of the amount due, after allowing all creclits, and a correct description of the property to be chai'ged. . Looking to this provision alone, we should perhaps hold that it is not necessary to set forth the name of the owner. But the following section (section 2132) provides that the county clerk shall make, in a book kept for [73]*73that purpose, an abstract containing (1) the date of the filing; (2) the name of the person holding the lien; (3) the amount thereof; (4) the name of the person against whose property the lien is filed; and (5) a description of the property to be charged. Construing the two sections together, the conclusion seems unavoidable that the name of the owner, or person whose interest is sought to be charged, must be stated; otherwise, the clerk could not perform the duty enjoined upon him by the latter section without instituting an independent inquiry upon his own account,- — a task which in no wise appertains to his official duties. The abstract required to be made by him is of the lien, and the necessary particulars of it cannot be set forth by him unless the claim contains them. The Supreme Court of Iowa has construed a similar statute, and holds that it does not by implication make this requirement ( Welch v. McGrath, 59 Iowa, 519, 10 N. W. 810, 13 N. W. 638); but we do not agree to a construction which renders a substantial part of these provisions useless and ineffective. In Montana Lumber & Manufacturing Co. v. Obelisk Mining & Concentrating Co., 15 Mont. 20, 37 Pac. 897, this Court assumed that the provisions of the Compiled Statutes of 1887 (Compiled Statutes of 1887, Fifth Division, Secs. 1371-1373, and amendments, Laws 1887, p. 71), which are substantially the same as Sections 2131 and 2132, supra, required the claim of lien to state the name of the owner. Again, in Richards v. Lewisohn Bros., 19 Mont. 128, 47 Pac. 645, it was said that this construction of the provisions of the Compiled Statutes was necessary in order that they might all be harmonized and rendered effective. We. think it but a fair and reasonable construction, and should be applied to Sections 2131 and 2132, supra. It imposes no burden upon the claimant, other than is contemplated by these provisions, and a compliance on the lienor’s part enables the clerk to perform his duty, which otherwise he could not do. The claim of plaintiff is therefore fatally defective in this particular.
3. There is another question, which is not directly raised by appellant, but which is so patent upon this record that we [74]*74deem it proper to call attention to it. The O’Donnells were not made parties. Under the proof in the record, E. C. O’Donnell contracted the debt for the materials furnished by the plaintiff and became personally liable' to pay it. This debt is the only foundation there is for this suit. If there is no debt, there can be no lien. The existence of the lien depends upon the existence of the debt, for which it stands as security. It cannot be enforced until the fact of indebtedness be shown. This fact cannot be shown except in proper judicial proceedings for that purpose, to which proceeding the debtor is made a party. In other words, no j udgment can be rendéred or enforced in any case until the debtor is made a party to the proceeding, and the fact and amount of his liability are judicially ascertained. (Gilliam v. Black, 16 Mont. 217, 40 Pac. 303; Kerns v. Flynn, 51 Mich. 573, 17 N. W. 62; Vreeland v. Ellsworth, 71 Iowa, 347, 32 N. W. 374; Lookout Lumber Co. v. Mansion Hotel & B. Ry. Co., 109 N. C. 658, 14 S. E. 35; Sinnickson v. Lynch, 25 N. J. Law, 317; Estey v. Lumber Co., 4 Colo. App. 165, 34 Pac. 1113.) The lien is not in any sense the, or any, cause of action. It is merely an incident, ancillary or subsidiary to the main fact — which is the debt. The creditor may waive his lien, — the incidental right, — and pursue the debtor upon his personal liability, but he cannot enforce the lien without ascertaining both the fact of indebtedness and the amount of it in the only way recognized by law; that is, by making the debtor a party, and litigating the question of indebtedness with him. The section of the statute (Section 2138 of the Code of Civil Procedure) providing who may be made parties to suits to enforce liens in no wise changes the rule as to those who are necessary parties.
The judgment and order appealed from are reversed, and the cause is remanded, with directions to grant a new trial.
Beversed and, remanded.
[Decided April 30, 1900.]