Winslow v. Urquhart

Statutobt Lieu: Labor upon Logs. (1) Statutes valid. General owner not necessary parly. (S) Rights of general owner; may replevy; not . estopped by lien judgment. (3) When justice’s judgment for a lien presumed valid. (4) One tvho cooks food for the loggers, etc., entitled to lien. (5,6) Form of affidavit for attachment in such cases. Practice. (7) New trial in replevin, after judgment reversed. 1. The statutes of 1860, 1862 -and. 1869, relating to liens upon logs for labor or services connected therewith, are valid; and where the laborer is not employed by the general owner of the logs, or of the land on which they are ont, but by a contractor under him, proceedings to enforce the lien are not invalid because such general owner is not made a party. Munger v. Lenroot, 32 Wis., 541, adhered to. - 2. A judgment for the plaintiff in such am action does not estop the general owner of the logs from denying the right of such plaintiff to a lien upon them, in replevin by such owner against the purchaser under the judgment. 3. In replevin for logs, where defendant claims under a judgment of a justice’s court to enforce am alleged lien on tire logs, which is regular on its face, such judgment must be held valid, unless the contrary affirmatively appears; and all reasonable presumptions consistent with the record will be made, to sustain it. 4. The statute (Tay. Stats., 1768, § 25) gives'to any person “ that shall furnish any supplies, or that may do or perform any labor or services in cutting, falling, hauling, driving, running, rafting, booming, cribbing, or towing any logs or timber,” a lien on them “ for the amount due for such supplies, labor or services.” Held, that these terms include an amount due under contract for cooking food for the men engaged in driving the logs. 5. The affidavit for an attachment in this case, after stating the sum due plaintiff from defendant above all legal setofis, adds, “ that said indebtedness is due for labor and services performed by plaintiff for the defendant in and about cooking for men driving pine logs,” etc., and does not otherwise show that it was “due upon contract, express or implied.” Held, sufficient under Tay. Stats., 1769-70, §§ 28, 33. Blackwood v. Jones, 27 Wis., 498, distinguished. 6. The affidavit for the attachment (under the act of 1862, as amended) showing that the petition for a lien upon the logs in dispute was dcdbf filed in the office of the derk of the circuit court of the proper county (viz., that in which the services were rendered, and in which tire logs remained until seized on the attachment), it is not necessary to state that it was recorded in the office of the lumber inspector for the proper district; and it seems that such recording is not essential to the validity of the lien. 7. On reversing a judgment in replevin for the plaintiff, the value of the property not having been determined. on the trial, and not being ascertainable from the record here, the cause is remanded for a new trial.

APPEAL from the Circuit Court for Oconto County. Replevin, for a quantity of pine saw logs; complaint in the usual form. The defendant in 'his answer claims to he the owner and entitled to the possession of snch logs, by virtue of a sale thereof to him by the sheriff of Oconto county, on an execution, as hereinafter stated. Such proceedings were had under ch. 128, R. S., that the logs were delivered to the plaintiffs. The action was tried by the court without a jury, and the only evidence introduced by either party was an agreed statement of facts, in effect as follows: On July 8th, 1872, and prior thereto, the plaintiffs were the owners and in possession of the logs in controversy. On that day one Brooks commenced an action before a justice of the peace against one McCaulley, by attachment, under ch. 154, Laws of 1862 (entitled “ An act providing for a lien for labor and service upon logs and lumber in certain counties ”), and the acts amendatory thereof (Tay. Stats., 1768); and the logs were seized by virtue of the attachment issued in that action. The statute (Tay. Stats., 1769, § 28) requires an affidavit to be made and annexed to the attachment before execution of the writ. In the case just mentioned, the affidavit was as follows: “Watson Brooks, being duly sworn, on oath says, that he is the above plaintiff; that the above defendant is indebted to the plaintiff in a sum over $5.00, and in the sum of $90, over and above all setoffs; that said indebtedness is due for labor and services done a/nd performed by theplaintifffor the defendemvt, im, and about coolcing for men driving pine logs im, Oconto county, Wisconsin, between the 9th day of April, 1872, and the 24th day of May, 1872; and that said logs are now lying in the waters of the Oconto river and Pesh-tigo brook, m Oconto cov/nty, Wisconsin, and are marked as follows [here follows description of logs]; and that the plaintiff, on the 19th day of June, 1872, duly "filed his statement, or petition under oath, for a lien on said logs, in the office of the clerk of the circuit court for the county of Oconto, Wis.” The complaint in the attachment suit alleges that Brooks, the plaintiff therein, performed labor for McCaulley, under a contract therein stated, from April 9th to May 24th, 1872, in the county of Oconto, “ in and about cooking for men driving pine logs in Oconto county, Wis.;” that $90 of the agreed wages remain unpaid; “that said logs whereon plaintiff performed the labor and services aforesaid are now in the waters of Oconto river and Peshtigo brook in Oconto county;” and that said Brooks “on the 19th day of June, 1872, duly filed his petition or statement for a lien on said logs in the office of the clerk of the circuit court for Oconto county, Wis.” McCaulley answered, admitting that Brooks worked for him, cooking for his men, as stated in the complaint, and took issue only on the amount due and unpaid for such work, which he admitted to he $48.65, for which sum he tendered Brooks a judgment. On July 9th, 1872, the sheriff of Oconto county seized the logs in controversy in this action, by virtue of the writ of attachment issued in the action of Brooks v. MeGmtMey. After trial, and on the 9th of July, the justice rendered judgment for Brooks, for $82.86 and costs, and also found and adjudged that the labor for the price of which the judgment was rendered was performed on the logs mentioned in the complaint, and that the judgment was a lien thereon. The logs were duly sold by the sheriff on an execution issued upon such judgment, and the defendant in the present action was the purchaser at such sale. It was further stipulated as follows: “ That prior to the commencement of this action the plaintiffs demanded the logs in question; that the defendant only claims title and right of possession to the logs described in the complaint by virtue of the judgment in the case of Brooks v. MoOauTley, and the subsequent proceedings thereon; that the only relation McCaulley held to the plaintiffs was that he had taken a contract of them to get out and drive the logs in the complaint mentioned, and was to receive an absolute amount therefor.” The court found the facts to be as stated in the agreed case, and rendered judgment “ that the plaintiffso recover of the defendant the possession of the personal property described in the complaint, and also that they recover six cents damages, together' with the plaintiffs’ costs and disbursements incurred in this action, taxed at $28.63, amounting in all to the sum of $28.69.” The defendant appealed from the judgment. The cause was submitted by both sides on briefs. argued, 1. That the constitutionality. of ch. 154, Laws of 1862, was settled by the decision in Mumger v. Lenroot, 32 Wis., 541. 2. That the plaintiff in the action of Brodies v. 'McCaulley was entitled to the lien there adjudged for his services as a cook for the men engaged in getting out and driving the logs (Young v. French, 35 Wis., Ill; Hill'v. Newman, 38 Pa. St., 151; Tizza/rd v. Hughes, 3 Pkila., 261;. In re Hope Mvt%-ing Go., 1 Sawyer, U. S., 710); and that it must be presumed in favor of the justice’s judgment, that if a'lien for services in cooking exists under any circumstances, the necessary circumstances were, shown in that case. (Counsel argued at length that the rule established or intimated by the cases above cited is the just one.) 3. That the plaintiffs cannot'attack the judicial sale made in that case on the ground that the facts did not authorize a lien. (1) The proceedings in such cases are i/n rem (Mumger v. Lemroot, supra; Tay. Stats:, 1771); the seizure of the logs is therefore notice to all the world. Moore v. Spaohncm, 12 S. & R., 287; Gi'éen v. Van Bushvrh,7 Wall., 139; Ziegenhagcm v. Doe, 1 Ind., 174;' Williams v. Stewart, 3 Wis., 773; 15 Ohio, 435. (2) The logs were attached in the lien proceedings July 9, 1872; were sold September 19, 1872, and plaintiffs did not commence this action until the 30th of the latter month. If' they could not have appeared in justice’s court in the action by Brooks, and contested the lien, they could have sued the officer and Brooks at any time between the seizure and the sale. Having remained silent for two montlip, are they not estoppéd from disputing the validity of the proceeding on the ground that the facts proven did not constitute a lieu? Thompson v. Blanchard, 4 Corns., 303; 27 Barb., 595. 1. In tlie action before tlie justice, tbe affidavit for tbe writ failed to state that the indebtedness therein mentioned was due upon contract. The writ was therefore void, and the justice had no jurisdiction to proceed m rem. Blackwood v. Jones, 27 "Wis., 498. 2. The complaint in that action should have alleged the recording of the lien in the office of the lumber inspector of the proper district, or the filing of the lien with the proper sub-inspector. Sec. 16, ch. 154, Laws of 1862. It should also have shown affirmatively that the claimant’s labor was performed in one of the counties in which the lien law applies (sec. 1, ch. 154, Laws of 1862); whereas it merely shows that the men for whom the eooliing was done were at work in Oconto county, and does not show where the cooking itself was done. The rights of an absent third party being seriously involved, the lien claimant should be held to a strict compliance with the statute. ' The complaint is so defective that a judgment under it, so far as it operated upon the status of property, would be reversed by this court though every essential fact had been proven. K-v. H-, 20 Wis., 239. 3. If the act be constitutional, it does not provide a lien in- favor of one performing labor as a cook; and hence the legislature of 1874 amended tlie act so as to make it include such services. Oh. 267 of 1874. See the reasoning in Hunger lo. Lenroot, p. 546. 4. Plaintiff’s title was not divested by the sale under the justice’s judgment. If the justice had no jurisdiction, the sale conferred no title upon the purchaser. 2 ITow. (U. S.), 43; Shelton v. Tiffin, 6 id., 163; Williamson v. Berry, 8 id., 495; Morris v. Hogle, 37 Ill., 150; Marshy v. Blaekmarr, 20 Iowa, 161. And even if the court had jurisdiction, if from any cause the sale was really void, the objection is good in a collateral proceeding. Gooper ■v. Sunderland, 3 Olarke (Iowa), 114; Brazier v. Steenrod, 7 Iowa, 346. But Munger v. Lem/root is decisive that plaintiffs are not estopped by the sale in question. See also BBadson v. Tibbetts, 16 Iowa, 97; McGahen v. Carr, 6 id., 331; Brog-Mll v. Bcosh, 3 G. Greene, 357. 1. The affidavit for a lien is in the exact language of the statute under which such lien was claimed. Tay. Stats., 1768-70, §§ 25, 28, 33. 2. The lien is not required to be recorded in the lumber inspector’s office. (1) The language of ch. 167 of 1864 as to such recording applies only to mortgages or other written instruments. (2) The law of 1864 in no way attempts to amend the lien law of 1862. The law of 1867 simply extends the provisions of the act of 1862, and none other, to Oconto county. 3. The allegation that plaintiff duly filed his petition or statement for a lien with the clerk of the circuit court for Oconto county, is sufficient. Bv/rdAck v. Briggs, 11 Wis., 126, 132. This allegation, not being denied under oath in the answer, is admittted. Tay. Stats., 1772, § 41. 4. The language of the law of 1862, and of see. 1, ch. 267, Laws of 1874, so far as it prescribes what services shall constitute a lien, is identical. Subsequently said sec. 1 declares : “ The provisions of this section shall include the labor and services of any cook,” etc. This is a legislative construction of the language preceding; and so far as the law of 1874 is entitled to any weight in this argument, it confirms our construction of the act of 1862. But the present case is governed by the principle that the legislature cannot declare the intent of a prior law so far as it applies to cases arising before the explanatory act. Opinion of Dixon, O. J., in Mtmger v. Benroot, pp. 556-7, and cases there cited; Cooley’s Con. Lim., 92-94. Tovmg v. French, 35 Wis., Ill, was a judicial construction of the law of 1862.