and 6 as her homestead, if the value of such lots, together with the improvements thereon, do not exceed the sum of $2250, the appellants are not entitled to a lien, unless it be found that when the material was furnished the respondent was then the owner of other lands separate and apart from lots 5 and 6, and which, independently of them, constituted her homestead, and equalled or exceeded the value of her homestead exemption.

The issues in these respects were so loosely presented at the trial, and the evidence bearing upon them is so meager and indefinite, that we, on the record as presented, are unable to make or direct findings on them. The findings made by the court in such particulars are incomplete, and in some respects are not sufficiently responsive to the issues. and, in the particulars pointed out, are not supported by the evidence. If the findings of the court that all the lots when the material was furnished did not exceed in value the sum of $2250, or that lots 5 and 6 were all the lots owned by the respondent, were supported by the evidence, or if on the record we were clearly justified in assuming that all the lots were but one parcel of land upon which the respondent was living with her family as her home, of which lots 5 and 6 were a part-it being sufficiently shown that such lots were claimed and selected, and that they, with the improvements thereon, did not exceed in value the sum of $2250—we would affirm the judgment of the court below. But in the absence of such evidence, and such assumption not being clearly warranted because of the uncertainty of the evidence, we find it necessary to reverse the judg ment, and remand the case for a new trial. It is so ordered, with costs to appellants.

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In view of obviating another appeal on a new trial of the case we feel justified in calling attention to a ruling made relating to a stipulation found in the record, although no assignment is made with respect thereto. We advise that if the stipulation is again offered in evidence, the court ascertain and determine the intent and purpose of the stipulation, and as to whether it was a

stipulation as to facts intended to be only evidential for the purpose alone of the particular proceeding then pending, and in respect of which it was entered into, and merely to save time, and as a matter of convenience to avoid calling witnesses in such particular proceeding, or whether it was intended to be a stipulation of ultimate facts in the cause, and applicable alike to all proceedings and trials thereof. In the one instance the stipulation, if admitted, should be regarded only as being evidentiary, and not conclusive of the facts therein recited. In the other it should be regarded as being conclusive as to all such facts, unless, upon sufficient grounds, it be made to appear to the court why either or both of the parties ought to be relieved from the effects of the stipulation, or be allowed to withdraw or retract it. FRICK and MCCARTY, JJ., concur.

STATE ex rel. DORSETT v. MORSE, Judge.

No. 2035. Decided August 27, 1909 (103 Pac. 969).

1. ABATEMENT AND REVIVAL-ANOTHER ACTION PENDING. An action at law to recover for materials sold is not a bar to a suit in equity to foreclose a mechanic's lien for the same claim. (Page 363.)

2. ELECTION OF REMEDIES-NECESSITY-WHO MAY ELECT. While a plaintiff suing both at law and in equity at the same time and for the same matter may be required to elect which suit he will proceed with, the court may not make the election for him, and stay the equity suit until the law action is determined. (Page 364.)

Petition by the state, on the relation of Marie M. Dorsett, administratrix, etc., for writ of mandamus against Hon. Charles W. Morse, one of the Judges of the Third District Court.

GRANTED.

E. D. Hoge for plaintiff.

M. E. Wilson for defendant.

STRAUP, C. J.

The petitioner commenced an action at law in the Third district court against Flora A. Phillips to recover the sum of five hundred dollars for lumber, cement, and stone sold and delivered to her. The defendant in that action answered and filed a counterclaim upon which she demanded judgment against the petitioner in the sum of $2500. Thereafter, and while the law action was pending, the pe titioner commenced a suit in equity in the Third judicial district court against the said Phillips to foreclose a mechanic's lien against her property. She appeared in the equity suit, and, among other things, alleged the pending of the law action; that both actions arose out of the same contract and transaction; that the debt upon which a personal judgment was demanded in the law action was the same debt upon which the lien in the equity suit was claimed; and that the petitioner waived all rights to a mechanic's lien by the commencement of the law action for a personal judgment. Upon proceedings had in the equity action the court held that the lien was not waived by the prior commencement of the law action. The court, however, adjudged and ordered that all proceedings in the equity action to foreclose the lien be stayed until the law action was finally determined. The petitioner moved the court to vacate the order and to proceed with the equity action. The court refused. Thereupon the petitioner applied to this court for a writ of mandamus to compel the court to so proceed.

We think the writ ought to be issued. The law action is not a bar to the equity suit. If the petitioner is suing the defendant both at law and in equity at the same time and for the same matter, the defendant can require the petitioner to elect whether she will proceed with the suit in equity or with the action at law.

1

2

The petitioner in effect made an election to proceed with the suit in equity. If no such election was made, the court ought to require her to make an election, and, if she elects to proceed with the equity suit, the court should proceed with it. The court had no authority to make the election for her and to make the order which was made.

Let the writ issue.

FRICK and MCCARTY, JJ., concur.

GRAND CENTRAL MINING COMPANY v. MAMMOTH MINING COMPANY.

No. 1957. Decided September 3, 1909 (104 Pac. 573).

1. APPEAL AND ERROR-SUBSEQUENT APPEALS-LAW OF THE CASE. The rule that a decision on an appeal, however erroneous, becomes the law of the case on a subsequent appeal includes the question of the appellate court's jurisdiction, so that, in assuming jurisdiction of an appeal and deciding the case on the merits, the Supreme Court necessarily decided that the judgment appealed from was final and appealable, and the question cannot be raised on a subsequent appeal. (Page 375.)

2. COURTS-WRIT OF ERROR FROM UNITED STATES SUPREME COURT TO STATE COURT-STAY OF PROCEEDINGS. As a rule, no action can be taken by the state court as to any part of a case which has been removed by writ of error to the Supreme Court of the United States. (Page 376.)

3. COURTS-WRIT OF ERROR FROM UNITED STATES SUPREME COURT TO STATE COURT-STAY OF PROCEEDINGS. Where, in an action in which defendant set up a counterclaim, an appeal was taken from the judgment dismissing the counterclaim before the issues raised by the complaint were determined, a writ of error from the federal to the state Supreme Court, upon the latter's affirmance of the judgment appealed from, only removed the proceedings involving the judgment on the counterclaim to the federal court, so that the pendency of the writ of error would not stay proceedings in the trial court to determine the issues

raised by the original complaint, especially where its action was not stayed by a supersedeas bond or otherwise. (Page 377.)

4. APPEAL AND ERROR-SUBSEQUENT APPEAL-LAW OF THE CASE. Where the Supreme Court, on a prior appeal from a judgment dismissing a counterclaim, decided that the judgment was final and appealable by assuming jurisdiction of the appeal, it also necessarily decided that the case was divisible, and that the judgment dismissing the counterclaim was independent of the case made by the original complaint. (Page 377.)

5. BOUNDARIES-CONFLICTING ELEMENTS-FIELD NOTES AND MONUMENTS. The courses and distances in the field notes and in the patent of a mining claim were not conclusive of the true location of the established monuments of the official survey. (Page 379.)

6. BOUNDARIES-EVIDENCE-SUFFICIENCY. Evidence held to sustain a finding as to the correct location of a corner of a mining claim as fixed by a survey. (Page 379.)

APPEAL from District Court, Fifth District; Hon. Joshua Greenwood, Judge.

Action by the Grand Central Mining Company against the Mammoth Mining Company.

Judgment for plaintiff and dismissing defendant's counterclaim. Defendant appeals.

AFFIRMED.

See 29 Utah 490, for former appeal.

Everard Bierer for appellant.

Dickson, Ellis, Ellis & Schulder for respondent.

APPELLANT'S POINTS.

Appellant insists that the so-called decree was an order merely. If it was a final judgment, we have now two final judgments in this case without the intervention of a new trial-an impossibility-a conclusion similar to the reductio ad absurdum of mathematics. If this court decides that