Louis Bradford Lumber Co. v. Creel

Rose, J. This is an action to foreclose a mechanic’s lien on a house and two lots in Omaha. Plaintiff, as a subcontractor, furnished material for the house, and filed a lien for $166.39, the balance claimed to be due. George Dun-ham was the contractor. When the materials were furnished, Minnie O.- Creel owned the lots, but before this suit was instituted she and her husband sold them to Andrew Sohler; the transfer having been made January 15, 1909, and plaintiff’s petition having been filed August 17, 1909. Creel and wife, Sohler and wife, and Dunham are defendants. From a decree foreclosing plaintiff’s lien defendant, Minnie C. Creel, has appealed. As a reason for reversing the decree of foreclosure, it is asserted: “The action is barred, as the same was not commenced as to the owner of the real estate within two years of the filing of the lien.” The lien was filed De [574] cember 12, 1907, and personal service of summons was not made upon Solder until January 6, 1910. Proof of service by publication, however, had been filed November 2, 1909, and this was within the statutory period of two years, but defendant asserts it was void. Constructive service was based on an affidavit that Sohler was a nonresident, upon whom personal service could not he made in Nebraska. Nonresidence was a controverted issue of fact, with evidence on both sides. The trial court found that Sohler was a resident of Iowa, and the more convincing proofs sustain that conclusion. It is therefore adopted as correct, and prevents a reversal on this ground. Defendant also argues the following proposition: “Plaintiff’s material was furnished under at least three distinct contracts, and, at the date of filing the lien, the time for filing the same had expired as to all of the contracts and the materials covered by the same, except as ro its last set of items, totaling $86.14, and these items were paid for on November 13, 1907.” The evidence indicates a continuous course of dealing under one contract, and plaintiff was entitled to the balance due for material furnished thereunder. The trial court properly so found, and that conclusion defeats this defense. No error has been found, and the judgment is Affirmed. Reese, C. J., Barnes and Fawcett, JJ., concur. Letton, Sedgwick and Hamer, JJ., not sitting.