74 Mich. 359 | Mich. | 1889
Moses Myre, the defendant, was employed
' “A large quantity of saw-logs, consisting of white and black ash, maple, basswood, oak, elm, birch, pepjoeridge, pine, and hemlock, banked and put into what is known as ' Cedar Creek,’ in the county of Muskegon, and now situate upon the banks of Cedar creek, and in said Cedar creek, and in Muskegon lake, and in the booms of the Muskegon Booming Company and the mill-booms upon Muskegon lake, which said logs constitute what is known as the 'Cedar Creek Drive,’ and are marked as follows: A harp; H bar I; a star 57; heart X; box 5; 2 K 2; 4 box 7; O box S; box 56; L C or J K.”
By virtue of the writ of attachment the officers seized the logs described in the writ, and served the writ upon Montgomery, Champagne & Co., Beaudry, Champagne & Co., George E. Wood, Bertrand & Co., and the Muskegon Booming Company, they being the owners of thelogs, and no other •owners or agents being known to the officer. TTpon the Teturn-day, the plaintiff appeared, as did also the defendant, and the log-owners who had been served, except the Muskegon Booming Company. The log-owners appeared specially for the purpose of defending against the lien. The
The first contention is that there was no authority for finding a lien upon the logs marked S K Y, as these logs were not described in the writ, and not seized by the officer. The fact is conceded in the brief of counsel for plaintiff that these logs so marked were not described in the writ or declaration, but counsel contend that, inasmuch as no error of this kind is alleged in the affidavit for the writ of certiorari, counsel cannot now raise that question for the first time in this Court. We think, however, that the fourth allegation of error in the affidavit for the writ of certiorari is sufficiently specific to cover this objection, and that the justice was in error in finding that these logs, marked SKY, could be held under the lien filed, which in no manner described these logs.
A more important question, however, is raised. It appeared upon the trial before the justice that other parties' had logs in the Cedar creek drive than the logs described in the statement of lien, affidavit, and writ of attachment and declaration. Some of these logs were
It is contended, however, by counsel for plaintiff that, if there were other owners than those served and appearing, the log-owners had that knowledge, and, if they desired to have the other owners made parties defendant, it was their duty to make application to the court either by plea in abatement or by petition or motion, and have the other owners brought into the case, and that they cannot now complain of ±heir own fault or omission in not doing so.
This is a statutory proceeding, and the right to file or enforce the lien is only given by the statute. No such right exists outside of the plain terms of the statute, and the proceedings must in all respects comply with these statutory provisions. Before these statutes came in force the log-owner took his logs free from the lien of any person except such as might be acquired in a proceeding upon some debt or obligation created by his own contract. After this statute came in force, the presumption is that in making contracts for cutting, hauling, driving, etc., logs, this statute entered into and became a part of the contract, so that the laborer was given a lien upon logs, lumber, etc., upon which he expended his labor, and that the log-owner was fully cognizant of the fact that, if the contractor failed to make payments to the laborers, their lien might attach if these statutory proceedings were had. But it was never intended to give the laborer a lien upon one man’s property for labor
While it is undoubtedly true that in the enforcement of these liens the laborer may take only a part of the property upon which he has expended labor, and may collect from such part the value of the labor expended upon the whole, yet this must be limited to the labor done upon one owner’s logs. He cannot be permitted to seize and subject to his lien the property of one owner to pay for labor expended upon the logs of another owner. These are matters that must be determined at the trial. The plaintiff, on the trial, has the burden of showing how much, or what proportion, of his labor has been expended upon the logs or lumber of each owner, and, this being ascertained, he may have his lien assessed upon such product for the value of labor expended thereon. It appears that there were eight owners of these logs in the drive. Four only were served with process, and appeared in the action. Some testimony was given showing, or tending to show, how many logs each had in the drive. Several hundred thousand of these logs were not subjected to this lien, nor seized under the writ. The justice was in error in subjecting the logs actually seized to the payment of the debt of the other owners whose logs were not seized. The property of one man cannot be'taken to pay the debt of another, unless some fact appears showing some privity of contract between them.
The judgment in the circuit and justice’s court, so far as it attempts to enforce a lien against these logs, must be set aside and held for naught. The judgment obtained against Moses Myre is not affected by this proceeding. The log-owners will recover costs of all the courts against the plaintiff.