provided in the statute, as well as in the policy, is to indemnify the employer against the liability which the Compensation Act imposes upon him in favor of employees injured in his service, and nothing else. Now the Compensation Act does not create or impose upon the employer any liability to the attorney of his employe. That liability exists, if at all, because of another statute. The sole reference thereto in the Compensation Act is found in Code Supp. § 2477m20, where it is said that no claim for the service of any attorney in securing a recovery under this statute shall be an enforceable lien thereon, unless the amount of the same be approved in writing by a judge of a court or by the Iowa Industrial Commission. The effect of this provision is to so limit the operation of the general statute relating to attorney's liens hereinafter quoted that they may be enforced against employers under the protection of the written approval of a judge or of the Industrial Commission. In other words, to have a valid lien in such cases, the attorney must show compliance with the general statute on the subject of attorneys' liens, plus the observance of the requirements of Code Supp. § 2477m20. The general statute to which we refer reads as follows:

"An attorney has lien for compensation upon: * * Money due his client in the hands of the adverse party, or attorney of such party, in an action or proceeding in which the attorney claiming the lien was employed, from the time of giving notice in writing to such adverse party, or attorney of such party, if the money is in the posession or under the control of such attorney, which notice shall state the amount claimed, and, in general terms, for what service." Code, § 321.

[4] It will be rembered that, according to the agreed statement of facts that at the date of settlement with Owens no proceeding or action had been begun by Owens, or by plaintiff in his behalf, and under the provisions of this statute, plaintiff had not then acquired any lien, and, the money having been then paid, he could not thereafter acquire one.

[5] Again it is provided that the lien shall date only from the time of giving notice thereof in writing to the adverse party, and it is conceded that no such notice was ever served on the appellee. These facts would seem to be conclusive against the assertion of a lien by the plaintiff in this case.

He argues, however, that notice to the employer is sufficient because of the provisions of Code Supp. § 2477m47, by which the insurer is bound by the knowledge and notice possessed by the employer and jurisdiction of the employer is jurisdiction of the insurer, and that insurer is bound by any award or judgment against the employer. But as we have already pointed out, this provision is clearly limited to the binding effect upon the insurer of every liability established against the employer in favor of the employee under the Compensation Act, and the judgment obtained below by the attorney against the employer for the amount of his alleged lien is neither a judgment nor award in favor of the employee, and does not relate to any liability imposed by the Compensation Act.

We find in the record no ground upon which to disturb the ruling of the trial court.

The judgment appealed from is affirmed.

Ladd, C. J., and Gaynor and Stevens, J J., concus.

SUPREME COURT OF KANSAS.

CLOSE
V.

LUCKY O. K. MINING CO. (No. 22146.)*

1. MASTER AND SERVANT-WORKMEN,S COMPENSATION ACT-AMOUNT OF AWARD.

By virtue of the provisions of subdivision 14 of section 3 of chapter 226, Laws of 1917, an injury to a leg may in some instances justify a larger amount of compensation than loss of the leg, and it was not error in this case to follow paragraph 19 of such section, instead of the schedule set forth in paragraph 14 thereof.

(For other cases, see Master and Servant, Dec. Dig. § 385[14].)

2. MASTER AND SERVANT-WORKMEN'S

COMPENSATION ACT-RECORD-APPEAL-CONFLICTING EVIDENCE.

The record being confessedly one to be treated as if no motion for a new trial had been filed, as neither general findings nor ascertained and agreed facts are presented, claims touching excess of judgment, failure to submit to a surgical operation, and the objective character of the injury, involving an examination of conflicting evidence, cannot be considered.

(For other cases, ee Master and Servant, Dec. Dig. § 412.)

Appeal from District Court, Cherokee County.

Action by Elmer Close against the Lucky O. K. Mining Company for compensation under the Workmen's Compensation Act. Judgment for plaintiff, and defendant appeals. Affirmed.

C. O. Pingry, J. J. Campbell, and P. E. Nulton, ali of Pittsburg, for appellant.

S. L. Walker, of Columbus, and D. G. Smith, of Girard, for appellee.

WEST, J. The plaintiff recovered a lump sum judgment under the Workmen's Compensation Act (Gen. St. 1915, §§ 5896-5942) for an injury to his knee incurred while at work in the defendant's mine. The defendant appeals and claims that the judgment is erroneous because excessive, and that the district court erred in rendering a lump sum judgment.

The trial court made one finding of fact that

"The basis of the recovery of the amount of $4,810.74 was arrived at on the theory there was a permanent partial disability of the plaintiff, under such conditions as entitled him to compensation, and the amount was arrived at by taking the amount of his compensation proven and finding that the plaintiff had an earning capacity after the injury of $1. per day and allowing the plaintiff 60 per cent. of the difference between the amount of compensation proven and the amount of earning power after the injury."

[1, 2] It is urged that the judgment is excessive because not sustained by the evidence; because the injury is one coming under the *Decision rendered, July 5, 1919. 182 Pac. Rep. 392. Syllabus by the

Court.

schedule paragraph 14 of section 3, c. 226, of the Laws of 1917, and not under paragraph 19 thereof; because the plaintiff's capacity to work could be fully restored by a simple surgical operation. It is conceded that these matters are presented as errors of law, and as if no motion for a new trial had been filed. This precludes an examination of the evidence to see whether or not it sustains the findings, for we are not presented with findings of fact or with ascertained and agreed facts, and hence can consider errors of law only as distinguished from what might be called trial errors. Ritchie v. K. N. & D. Ry. Co., 55 Kan. 36, 39 Pac. 718; Nichols v Trueman, 80 Kan. 89, 101 Pac. 633; Filter Co. v. Bottling Co., 89 Kan. 645, 132 Pac. 180: Perkins v. Accident Association, 96 Kan. 553, 152 Pac. 786; Tacha v. Ry. Co, 97 Kan. 571, 155 Pac. 922.

It may well be that the loss of a leg might, in some instances, work less incapacity for earning wages than an injury thereto; at any rate, the schedule of the section already referred to expressly allows, for the loss of the leg, 50 per cent. of the average weekly wages during 200 weeks, while the same section, paragraph 19, provides that

"In case of partial disability not covered by schedule the workman shall receive during such period of partial disability not exc eding (8) eight years, 60 per cent. of the difference between the amo at he was earning prior to said injury as in this act provided and the amount he is able to earn after such injury."

The tral court in following this provision committed no error, for thus the law is written.

The claim that the judgment is not sustained by the evidence is one which should have been presented by a motion for a new trial if it is meant that the judgment is in whole or in part contrary to the evidence. Civil Code, § 305, subd. 4 (Gen. St. 1915, § 7205). If it is meant merely that it is not sustained by the evidence, then to go into such claim would involve on our part an examination of the conflicting testimony for the purpose of determining whether or not the judgment is supported thereby. Such a task is within the province of the trial court, but is not one to be performed for the first time by this court on appeal.

As to the failure of the plaintiff to submit to a surgical operation, it should be observed that, while the evidence on this point seems to be all set forth in the abstract, it is not harmonious nor is its effect or meaning conceded or agreed upon; and hence we cannot go into it to determine its significance.

The same may be said respecting the contention that the injury was not ascertainable by objective examination. Counsel, as other fairminded persons might do, disagree as to what the evidence shows in this respect, and it is not for us on appeal to settle such disagreement. The judgment is affirmed.

All the Justices concurring.

SUPREME COURT OF KANSAS.

WOLF
ข.

CUDAHY PACKING CO. (No. 22280.)*

1. RELEASE-EVIDENCE-MISTAKE.

There was evidence that tended to show a mutual mistake of fact.. (For other cases, see Release, Dec. Dig. § 57 [2].)

2. WAR-"ALIEN ENEMY"-RIGHT OF ACTION WORKMEN'S COMPENSATION ACT.

UNDER

A citizen of Germany, who came to this country in 1885 and then took out his first naturalization papers, which were subsequently destroyed by fire, who, previous to and at the time of the declaration of war with Germany, was working for one of the packing house companies of Kansas City, and who immediately after that declaration was, by the federal authorities, given a permit to reside in the packing house district and to work for the packing house, is not declared to be an "alien enemy" by the act of Congress of October 6, 1917 (chapter 106, § 2, 40 Stat. 411 [U. S. Comp. St. 1918, § 31152aa]), and is entitled to prosecute an action under the Workmen's Compensation Act of this

state.

(For other case, see War, Dec. Dig. 10[2].)

(For other definitions see, Words and Phrases, Alien Enemy..

Appeal from District Court, Wyandotte County.

Action under the Workmen's Compensation Acts by William Wolf against the Cudahy Packing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

McFadden & Claflin, of Kansas City, for appellant.

Thompson, McCanles & Gorsuch, of Kansas City, for appellee.

MARSHALL, J. The defendant appeals from a judgment against it under the Workmen's Compensation Acts of 1911 and 1913 (Laws 1911, c. 218, amended by Laws 1913, c. 216). At the time of his injury, and at the time of commencing this action, the plaintiff was a citizen of Germany, but had come to this country in 1885, and had then taken out his first naturalization papers, which were afterward lost in a fire. He had been employed by the defendant for some time previous to the declaration of war with Germany, and, immediately after that declaration, he was, by the federal authorities, given a permit to reside in the packing house district in Kansas City and work for the packing house. While employed by the defendant, the plaintiff received an accidental injury, which has resulted in his permanent disability. He was treated by the defendant's physician, with whom the plaintiff made a settlement of his claim against the defendant for $114.70, and signed a written release of all further claims against the defendant on account of the injury. The release was also signed by the physician, as a witness, and was filed in the office of the clerk of the district court of Wyandotte *Decision rendered, July 5, 1919. 182 Pac. Rep. 395. Syllabus by the

Court.

county. To avoid the settlement and release, the plaintiff pleaded a mutual mistake of himself and of the physician.

[1] 1. The defendant contends that

"No testimony whatever was offered as to a mutual mistake of fact existing at the time the release was signed."

The plaintiff testified, in substance, that the physician had told him to go to work, and to work his hand, and it would be all right; and that, under these circumstances, he made the settlement and signed the release. There was evidence which strongly tended to show that the physician told the plaintiff that the hand would never get well, but there was other evidence sufficient to warrant the jury in finding that the physician had told the plaintiff that the hand would get well and be as good as ever. If the physician was honest-honesty must be attributed to him-and if he made the statements testified to by the plaintiff, he must have been mistaken. If both the plaintiff and the physician were mistaken as to the extent of the plaintiff's injury, the settlement and release ought not to bind the plaintiff. Weathers v.

Bridge Co., 99 Kan. 632, 162 Pac. 957; Smith v. Kansas City, 102 Kan. 518, 171 Pac. 9.

[2] 2. The defendant argues that the plaintiff cannot recover because he was an alien enemy at the time of his injury, and when this action was commenced. An examination of the alien enemy act of October 6, 1917, and of the President's proclamation thereunder, reveals that this argument is not sound. The act, cited by the defendant, so far as it is material for this discussion, reads:

'Enemy,' as used herein, shall be deemed to mean, for the purposes of such trading and of this act

"(a) Any individual, partnership, or other body of individuals, of any nationality, resident within the territory (including that occupied by the military and naval forces) of any nation with which the United States is at war, or resident outside the United States and doing business within such territory, and any corporation incorporated within such territory of any nation with which the United States is at war or incorporated within any country other than the United States and doing business within such territory. *

*

"(c) Such other individuals, or body or class of individuals, as may be natives, citizens, or subjects of any nation with which the United States is at war, other than citizens of the United States, wherever resident or wherever doing business, as the President, if he shall find the safety of the United States or the successful prosecution of the war shall so require, may, by proclamation, include within the term 'enemy.'

Act Oct. 6, 1917, c. 106, § 2, 40 U. S. Stat. at L. R. A. 1 (U. S. Comp. St. 1918, § 31152aa).

The plaintiff was not an "alien enemy" within the meaning of the act. He was not a resident of the territory of any nation with which the United States was at war, but was a resident of the United States. No proclamation has been cited, and the court is unable to find any, declaring that persons situated as was the plaintiff cannot sue in any of the courts of the United States.

A note on "Alien Enemies as Litigants," found in L. R. A. 1918B, 189, begins with the following language:

"While an alien enemy can neither institute an action during the continuance of the war, nor prosecute an action instituted before its commencement, such disability continues only while he is abiding in his own country; and, accordingly, does not exist where he is permitted to enter or remain in the country in which suit is brought. 'A lawful residence implies protection and a capacity to sue and be sued.' "