Kizer Lumber Co. v. Mosely

• Decision Date: 05 November 1892
• Citation: 20 S.W. 409,56 Ark. 544
• Parties: KIZER LUMBER CO. v. MOSELY
• Court: Arkansas Supreme Court

20 S.W. 409

56 Ark. 544

KIZER LUMBER CO. v. MOSELY

Supreme Court of Arkansas

November 5, 1892

APPEAL from Miller Circuit Court, CHARLES E. MITCHEL, Judge.

Order affirmed. Decree reversed and cause remanded.

W. H Arnold for appellant.

1. The sheriff's return of service is conclusive. Its truth cannot be controverted. 40 Ark. 141; 25 id. 311; 39 id. 70; 44 id. 202.

2. The motion to set aside the decree is not based upon any of the grounds in sec. 3909, Mansf. Dig; but if it had been, sec 3911 requires a complaint setting forth the grounds, and a good defense. If not actually served, defendant's remedy was to enjoin. 32 Ark. 459; 53 id. 11; 52 id. 80.

3. The ninety days commenced to run only from the date of the last item of the account. Jones on Liens, § 1435; 44 Md. 453; 3 Col. 255; 2 Disney (Ohio), 544; 40 Mo. 244.

OPINION

BATTLE, J.

This action 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 fractional 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 subsequent 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 which 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 plaintiffs, 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 account 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, 30 Ark. 568.

Plaintiffs brought this action and recovered a decree in equity. To set aside the decree the defendant should have proceeded 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, 50 Ark. 458, 8 S.W. 401. Overlooking the irregularity in the proceedings of the court below, we will, for the purposes of substantial justice, treat the motion and answer as a complaint in equity and dispose of the cause accordingly.

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 defendant is, that the plaintiffs only have a lien for the $ 21.26. Have they a lien,...