46 Iowa 696 | Iowa | 1877
The defendant, Emily Seydel, is the same person as the intervenor, the wife of BE. B. Seydel, her name being incorrectly set forth in the petition. From July 31st to August 21st, 1875, plaintiffs sold to the defendant, EL B. Seydel, a bill of lumber amounting to $277.49. On the 28th of April, 1876, EL B. Seydel executed his note for $140, the balance due on account. Afterward he paid on this note $40.33. On the 16th day of October, 1875, Emma A. Seydel purchased the lot in controversy, with her own means, from Charles Stuart; and on the 6th day of November, 1876, she obtained a deed therefor. The lumber in question was used in the erection of a building on this lot, which the defendants have since occupied as their homestead. At the time El. B. Seydel purchased the lumber, nothing was said as to the ownership of the lot, nor as to for whom he was acting. Plaintiffs supposed he was acting for himself. El. B. Seydel had no express authority from his wife to purchase the lumber. She did not know- that the lumber was being purchased on credit, but she did know that the lumber was being purchased, and used in the erection of a house on said lot.
E. This action is simply for the enforcement of a mechanic’s lien, which must be prosecuted by equitable proceedings under section 2510 of the Code. Relief is not sought because of the special equities of the case, as was done in Miller v.
II. The petition alleges that the lien was duly filed in the office of the clerk of the Circuit Court. The Code, Sec. 2137, provides that the lien shall be filed in the office of the clerk of the District Court. We need not determine whether such a departure from the provisions of the statute would be material, in view of the fact that the same person is clerk of both courts. The answer denies that any lien was filed. There is no evidence .that a lien was filed. This alone is fatal to plaintiff’s claim for a lien. In so. far as the judgment establishes a lien against the property in question, it is
Reversed.