37 Mich. 535 | Mich. | 1877
This record exhibits a conflict between proceedings under the statute to institute and enforce a lien against saw logs and proceedings by replevin for the same logs.
One Frank B. Seeley employed Henry Whitney, to fall, cut into logs, haul, bank and place in Sand lake over two million and a quarter feet of logs. Whitney claimed to have completed the job on or about October 6th, 1876, and on the 17th of that month he filed his petition under the second section of the act. 1 Sess. L., 1873, p. 466. He stated the amount due him for getting out the logs to be $2441.25, and insisted upon a lien therefor. October 24th, 1876, he procured an attachment to enforce the lien, and on the 27th of that month the defendant in error, who was the sheriff, seized a large amount of the logs pursuant to the attachment.
November 11th, 1876, the plaintiff in error, claiming as purchaser from Seeley, sued out a writ of replevin against the sheriff for the logs, and on the 13th of that month they were taken from him by the coroner pursuant to the writ of replevin.
Whitney subsequently carried on proceedings in the
The date of the judgment in the attachment proceeding-does not appear in the printed record. Neither does the date of the issue in the replevin suit. But this is not now important. Haifley alone brought error. Haynes acquiesced. Several questions of some difficulty were raised on the trial, and are discussed in the briefs of counsel. We shall not examine them. In view of the peculiar scope and character of this lieu law and in view of the entanglements in the two cases, — the bearing of the objections against setting up the lien proceedings against Haifley, and considering the theory of Haynes’ defense we feel compelled to notice a difficulty in Whitney’s claim which cannot be overcome. Even if we should generally concur with counsel on the part of Haynes it would be needful at last to consider this point. The difficulty in question lies on the face of the proceedings. It was distinctly explained in the petition. This was right. The fact itself could not be avoided. No form of statement could help it, and it was the better course to present it fairly by the petition. It is there declared as matter of fact and hence admitted that previous to the petition Seeley had sold 1250 of the logs to Haifley and had given him possession and had transferred the balance to Norman Carpenter. It was therefore shown by the petition that all right and title had previously passed from Seeley to purchasers, and that at the very time of making the petition to notify the public according to the statute no right or interest existed in Seeley. It is plain that justice and policy as well as precedent require a rigid
If this view is correct it follows that Haynes’ justification failed, that the allowance of it was error and that the judgment should be reversed with costs and a new trial ordered.