Collins v. Cowan, 52 Wis. 634

Collins v. Cowan

52 Wis. 634 | Wis. | 1881

Cole, C. J.

The only question we deem of sufficient importance to require notice is that raised by the first ground of demurrer assigned by the defendant Cowan, viz., that sevei-al causes of action have been improperly united. The action is *636brought to enforce a lien upon logs for work clone upon them between the 16th clay of July, 1878, and the 29th day of May, 1879. The complaint first alleges that the plaintiff, between the 16th day of July, 1878, and the 29th day of March, 1879, at the instance and request of the defendant Ayers, performed eight months and twelve days’ work on logs marked as described, for an agreed price, stating the amount due on this employment. It further alleges that between the 28 th day of March, 1879, and the 29th day of May following, the plaintiff, at the request of the defendant Oowan, performed thirty-seven days’ work on logs having the same mark, for an agreed price, stating the amount due on this employment. A separate personal judgment is demanded against Ayers and Oowan for the amount due on each contract, and a general judgment that the whole amount be adjudged a lien upon the logs. There is nothing in the complaint to show what interest either Ayers or Oowan had in the logs; whether it was a joint interest or a distinct and separate one. It is not pretended, nor could it well be in view of the averments in the complaint, but that all the work was done on the same logs, or upon logs having the same mark. The real question, therefore, presented is, Can a laborer who performs services on the same logs for different persons have an action to enforce his entire lien, making such persons for whom he worked parties? In other words, should the lien be treated as an entirety, or should it be regarded as divisible, the amount due on each employment constituting a distinct lien which must be enforced by itself?

The learned counsel for the plaintiff argues that the lien under the different employments should be treated as an entirety, and that it would be against the policy of the statute, and subserve np useful purpose, to compel the plaintiff to bring two separate actions to enforce it. lie says that in one aspect the proceeding is in the nature of an action in rem to subject the property to the payment of a debt upon which the lien is founded; that we must presume, upon the facts stated, *637that both Ayers and Gowan had au interest in the logs, either joint or separate, or that one has succeeded to the rights of the other; and that certainly they have a common interest in defeating all liens upon the logs; so that, in either event, they are proper parties. We are inclined to adopt this view as being the correct one. The lien is surely given by the statute. The action to enforce the lien is sui generis. It bears some analogy to a libel in rem, and proceedings thereon in admiralty. But the object of the statute manifestly is to secure to the person who has performed any labor or services upon .logs or timber a lien for the entire amount due him for such labor and services. Section 3329 of the Revised Statutes, and Munger v. Lenroot, 32 Wis., 541. It declares that any person who does or performs any labor or services in cutting, hauling, driving or rafting any logs or timber, shall have a lien upon such logs or timber for the amount due for such services. Now, suppose a laborer is employed by A. to cut logs, by B. to haul them, by 0. to drive or raft them: is it the meaning and policy of the statute that he should commence as many suits as he had different employers, to enforce his lien ? As is well observed by plaintiff’s counsel, it is the performance of the labor or services, and not the contract of employment or the relation that the employer bears to the logs, or the ownership thereof, that creates the lien. In the case just supposed, it certainly saves a multiplicity of suits to treat the lien as an entirety, capable of being enforced in one action. It gives each employer who may have some interest in the logs an opportunity of contesting the amount and right of lien, not only under his employment, but also as to the others. It further saves the common property from being consumed by costs in several suits, which seem unnecessary for the protection of any right. It is these considerations which induce us to hold the lien entire under the employments stated in the complaint, and that there is no misjoinder of causes of action. We must presume that Ayers and Cowan had some interest in the logs *638upon which the plaintiff performed his services, and that they are not trespassers; and we think the service performed by the plaintiff, as stated, must be treated as a continuous one. "We certainly cannot assume that the plaintiff was a trespasser in doing the work under these parties upon the property.

It was also suggested that because this law in terms is limited to certain counties, of which Burnett is one, it is local. But there can be no doubt that the law is general, under the repeated decisions of this court.

By the Court.— The order of the circuit court overruling the demurrer of the defendant Cowan, is affirmed.