Page:1862 Territory of Dakota Session Laws.pdf/398

CHAP. LIV.] that the plaintiff was employed by said contractor, and had served a notice in writing upon the defendant or his agent, to the effect that he, the plaintiff, was, or had been employed by the said contractor, to perform labor thereon, or to furnish materials for the improvement of such lands, tenements, and hereditaments, and relied upon him, the defendant, or upon such lands, tenements, or hereditaments for his pay, then the filing of such complaint shall constitute and be a lien in favor of the plaintiff, the same as provided in the preceding section, to the amount that the defendant was indebted to the said contractor, when the said notice was served upon him or his agent, and to the amount in which the defendant became indebted to said contractor after the service of said notice, and before the expiration of the plaintiff's lien: Provided, The amount thus due, or thus becoming due, does not exceed the amount claimed in the complaint; and upon the trial, the plaintiff shall have judgment for no more than the sum due from the defendant to the contractor at the time of serving such notice, and the amount which becomes due after the service of such notice; and when the lien shall be acquired under this section, it shall be a bar to any action by the said contractor, for the recovery of his claim for moneys due from said defendant, to the amount of the lien, until such claim of lien shall be finally decided, and if decided in favor of the plaintiff, then it shall be to that extent a bar forever.

. 3. The plaintiff may, at any time after filing his complaint as above provided, serve a notice on the defendant, and proceed to judgment as in other actions, but the lien hereby created shall cease to exist after ninety days from the time the labor was performed, or the materials furnished, unless a notice be served within that time: Provided, That if the defendant be absent or concealed, he may be proceeded against in the same manner as is provided for in other cases of absent or concealed defendants.

. 4. The lien hereby created, shall be as effectual as liens created by judgment of courts of record; and if the plaintiff shall recover judgment upon his complaint, the lands, tenements, and hereditaments therein described, or any interest whatever therein, either in law or equity, which the defendant had therein at the time of securing such lien; and