This аction was brought by appellants against Jacob Mosely, in the Miller circuit court, on the equity side, to enforce a lien for materials furnished the defendant and used by him in building a residence in Miller county, in this State. The summons in the case was returned by the sheriff legally served. The defendant failed to appear at the time at which he was required to do so, and a decree by default was rendered against him in favor of the plaintiffs for $197.82, the amount of the account sued on and interest; 'and it was ordered that the residence and the fractiоnal block on which it was built be sold to satisfy the same. The property was accordingly sold, and was purchased by the plaintiffs. At a subsequеnt term the defendant filed two-motions, one to set aside the sale and the other to vacate the decree, on the ground that no summons or other process had been served on him and that he had no knowledge of the decree until long after the term at whiсh it was rendered had expired, and his property had been sold. Upon hearing the evidence adduced by the parties as to the service of the summons, the court sustained both motions ; set aside the decree and sale; transferred the cause to the law docket; and gave to the defendant permission to file an answer in the original action at the term following. In pursuance of this leave he filed an answer, in which he denied that he was indebted to plaintiffs in the amount sued for, and alleged that he had a running account with рlaintiffs, and that the lumber charged to him had been furnished under different contracts, and that he had paid, in part, for the same in hauling and money. The issues joined were tried by a jury, who, after hearing the evidence, returned a verdict for plaintiffs in the sum of $184.10, the amount of the acсount sued on without interest, and found that plaintiffs were only entitled to a lien for $21.26 ; and judgment was entered accordingly.
These proceedings were irregular. The circuit court erred in setting aside the decree by default, and transferring the cause to the law docket. It has been held by this court that an action to foreclose a mechanic’s lien can be brought on the equity side of the court. Murray v. Rapley,
Plaintiffs brought this action and recovered a decree equity. To set aside the decree the defendant should have рroceeded in equity. He undertook to do so by filing a motion. He should have filed a complaint and alleged therein, not only that he had no notice of the pendency of the action, but also that he had a good and valid defense. State v. Hill,
We find from the evidence that no process was served upon the defendant, and that he had no notice of the # pendency of the action until after the sale. The evidence adduced at the trial proves that he owes to the plaintiffs the sum of $184.10, and interest thereon from the 4th of May, for lumber furnished to build his residence. The lumber was furnished in the year 1887 on nine different days, as follows: March 11, 23, 24, 28, April 1, 4, 7, 14, and May 4; and the account to secure a lien was filed with the clerk of the circuit court of Miller county on the 8th of July, 1887. Only $21.26 was due for lumber furnished within ninety days before the filing of the account. The contention of the dеfendant is, that the plaintiffs only have a lien for the $21.26. Have they a lien, and, if so, for how much of the amount due them?
Before any one can secure a lien, under the statutes of this State, for materials furnished, he must ‘ ‘ file with the clerk of the circuit court of the county in which the building, erection or other improvement to be charged with the lien is situate, and within ninety days after ” the materials were furnished, “ a just and true aсcount of the demand due or owing to him, after allowing all credits, and containing a correct description of the propеrty to be charged with said lien, verified by affidavit. ’ ’ Mansfield’s Digest, sec. 4406. If the materials were furnished under one contract, he should file the aсcount within ninety days after the ■ last was delivered; but if the materials were furnished under separate and distinct contracts, it should be filed under еach contract, within, the time limited. Livermore v. Wright,
When the defendant' purchased of the plaintiffs the first lot of lumber, he made no contract to buy any other material, but said to them that he might need more. He did need it, and called upon them from time to time to furnish the same, which they did, and charged it to him on account. It was furnished at short intervals, and, it seems, was appropriate to the progress of his house, and he used it in building the same. The presumption is, it. was furnished under one contract; and the amounts due for the same should be treated as one demand. The consequence is, the time for filing the account for all the materials furnished commenced running from the date of’ the last item of the same, and plaintiffs have a lien for the whole of it.
As the defendant had no notice of the pendency of the action, and that his property was to be sold, until it was too late to protect himself against the same and prеvent the disposal of his property under the decree, it would operate unjustly and as a fraud upon him and give to the plaintiffs an unduе advantage to permit the sale to. stand. ' It was properly set aside.
The order setting aside the sale is, therefore, affirmed, but thе order setting aside the decree and the proceedings, subsequent are reversed, and the cause is remanded for the enforcement of the decree which was vacated.