delivered the opinion of the court.
There was no appearance in this court by the appellees. It is that kind of a case in which we might be warranted in reversing and remanding for that reason. It appears from the abstract that appellant served a notice upon appellee, as owner, that it would claim a lien as sub-contractor upon the premises in question. That notice was served upon appellee, April 10, 1893. Ho work was done by the contractor upon said premises after that date. Appellees hired men and completed the work which should have been done by the contractor. The evidence tends to show that at the' contract price, that part of the work which was completed by the contractor, was worth from $1,050 to $1,100. ■ Also, that but a small part of that sum had been paid to appellant
when the notice was served. It is not entirely clear from said abstract that anything except the sum of seventy-seven dollars had been paid. Neither does it clearly appear what it cost to complete the building according to the contract.
The evidence tends to show that there was money in the hands of appellees due and owing to the contractor at the time such lien notice was served upon him. It seems to be clearly shown that appellees paid money to other sub-contractors after such notice was served, and that some, at least, of such payments can not be held to be valid as against appellant. We are unable to determine which of the payments made by appellees are good as against the rights of appellant; but it appears that there was money in the hands of appellees which should have been applied, to the payment, in whole or in part, of the claim or lien of appellant.
The decree of the Superior Court dismissing said bill at the cost of appellant is reversed and the cause remanded.