Cox v. North Wisconsin Lumber Co., 82 Wis. 141

82 Wis. 141 | Wis. | 1892

Cassoday, J.

The services of the plaintiff in hauling the logs in question were completed March 11, 1889. He was entitled to his pay for such services April 15, 1889. The law in force at the time of the rendition of such services was to the effect that any person doing or performing any labor or services in hauling any logs or timber in any of the counties in this state should have a lien upon such logs and timber for the amount due or to become due therefor, which should take precedence of all other claims or liens thereon. Sec. 3329, R. S.: ch. 469, Laws of 1885. The. contention is that that statute, and all other acts or parts of acts in any wise conflicting with the provisions of ch. 413, Laws of 1889, which went into effect April 17, 1889, were thereby repealed, except ch. 222, Laws of 1880, which did not give the lien in question. But ch. 413, Laws of 1889, embodied the same statute thus giving the lien; and this, upon well-settled rules of construction, must be construed as a mere continuation of such statute, and not as a repeal and re-enactment of it. Fullerton v. Spring, 3 Wis. 667; Laude v. C. & N. W. R. Co. 33 Wis. 640; Gilkey v. Cook, 60 Wis. 133; sec. 4985, R. S.

The plaintiff acquired his lien by virtue of his services on the logs and timber under his contract; and the only question is whether he took the necessary proceedings to continue it. The labor and services in question having been performed between November, 1888, and May, 1889, the statute required that the claim for such lien should be filed in the office of the clerk of the circuit court of the county in which such labor and services were performed, on or before June 1, 1889. Sec. 3331, R. S.; sec. 2, ch. 413, Laws of 1889. As indicated in the foregoing statement, such claim and petition for a lien was so filed in the case at bar May 24, 1889. By the statute the lien so claimed ceased to be a lien on the property, unless the action to enforce the same was commenced in the circuit court within four months after the filing of such petition or claim. Sec. 3332, R. S.; sec. '3, ch. 413, and sec. 1, ch. 454, Laws of 1889. Since the summons was never served upon Hanson, for whom the services were performed, personally or by copy, by reason of his nonresidence and absence from the state, nor even by publication within the time so limited, it is. claimed that the action was not commenced within the four months thus prescribed. But the logs in question were duly attached' September 21, 1889. It is true, the statute prescribes that a civil action in a court of record shall be commenced by the service of a summons. Sec. 2629, R. S. But it also provides that “ from the time of such service, or the issuance of. a provisional remedy, the court shall be deemed to have acquired jurisdiction, and to have control of all subsequent proceedings.” Ibid. A writ of attachment is a provisional remedy. Jarvis v. Barrett, 14 Wis. 591; Howell v. Kingsbury, 15 Wis. 275; Bell v. Olmsted, 18 Wis. 69; Cummings v. Tabor, 61 Wis. 185; Evans v. Virgin, 69 Wis. 159, 160. "‘Its office is to seize and hold such property as would be liable to execution in the principal action until a judgment can be recovered therein, and an execution issued thereon.” Ibid. Such seizure of property on such writ may be made before the service of the summons; and the same is so far in the nature of a proceeding in rem as to be the basis of a subsequent service by publication upon a nonresident. Bell v. Olmsted, 18 Wis. 69; Robertson v. Kinkhead, 26 Wis. 560. Especially is this so where, as here, such seizure is to preserve and continue a lien already acquired. Such seizure gave the court jurisdiction over the property seized, and the control of all subsequent proceedings thereon. Sec. 2629, R. S. To make such seizure effectual, however, it was necessary that the summons should be served within a reasonable time thereafter. Cummings v. Tabor, 61 Wis. 193; First Nat. Bank v. Greenwood, 79 Wis. 269. But here the principal defendant, Hanson, was a nonresident, and no service could be had upon him except by publication. Such service by publication could give the court no jurisdiction to render any personal judgment against him. Renier v. Hurlbut, 81 Wis. 24, and cases there cited. It could at most render effectual and complete the jurisdiction over the logs thus acquired by their seizure on the attachment. Ibid. Such seizure was followed by the publication of the summons in pursuance of the order of the county judge made in*the action, once in each week for six successive weeks, as mentioned in the foregoing statement, as prescribed by statute. Sec. 2640, R. S. The nature of the case is such as to authorize such service under the statute. Sec. 2639, R. S. It was made “upon a defendant against whom 'a cause of action appears ” to have existed. Such defendant was not only a nonresident, but his residence was unknown. The cause of action was for services performed by the plaintiff upon the logs and timber in question in the county named, under a contract with Hanson, and therefore the same arose within this state, and the trial court had jurisdiction of the subject thereof, which was such contract and the lien upon the logs and timber so seized given by statute under the contract, as indicated. It was because the plaintiff had acquired such lien that the defendant company, claiming to be the owner of such logs and timber, was made a party defendant upon its own application, as prescribed by statute. Sec. 3, ch. 413, Laws of 1889.

It is true that there were less than forty-two days from the time of the first publication to the time of the last publication,— that is to say, from October 5, 1889, to November 9, 1889; but there were, nevertheless, six publications, each on the first day of six successive weeks. Of course, .the time for Hanson to answer did not begin to run until the expiration of the last week; that is to say, November 16, 1889. But the trial did not occur, and his default was not entered, until April 4, 1890, so there can be no objection on the ground that Hanson was not in default.

We find no error in the record.

By the Court.— That portion of the judgment appealed from is affirmed.