McLaren v. Byrnes, 80 Mich. 275

McLaren v. Byrnes

80 Mich. 275 | Mich. | 1890

Champlin, C. J.

The bill of complaint sets up a judgment in McLaren’s favor against the Prospect Hill Mining Company, a corporation organized under the laws of the state of Wisconsin, and doing a mining business jn the county of Menominee and State of Michigan. This judgment was for the sum of $798.01 damages, and costs of suit. The judgment recited the fact that the fiame was rendered for the personal labor of complainant. He claims a lien upon the personal property of the mining company in the State of Michigan, under and by virtue of Act No. 201, Laws of 1867, being How. Stat. § 8408. Complainant claims, further, that his lien takes precedence of an attachment duly levied upon the personal property of the mining company, at the suit of the defendant Byrnes, six days prior to' McLaren’s filing a notice of claim of lien in the register’s office of Menominee county. Defendant Stiles is sheriff of the ■county, and complainant prays that he may be restrained from selling the property of the mining company under an execution issued upon the judgment recovered by ■defendant Byrnes in said attachment suit, and from paying him any moneys derived from any such sale until complainant’s judgment shall have been satisfied in full out of said property. This is the controversy between the parties.

The defendants deny that McLaren has or ever had a lien upon the property. They deny the validity of the judgment which he sets up in his bill, and assert that the same is invalid for want of jurisdiction apparent upon the face of the proceedings.

It is proper that we should first inquire whether McLaren ever had a lien upon the personal property of the mining company. On June 26, 1888, McLaren sub*278scribed and swore to the statements contained in a notice, which he recorded with the register of deeds on June 29, 1888, at 7 o'clock and 15 minutes in the morning. In this notice he stated that he intended to claim a lien on all the real and personal property of the Prospect Hill Mining Company, a corporation organized and existing under the laws of the state of Wisconsin, and doing business in the county of Menominee, State of Michigan, lying and being in the Upper Peninsula of said State of Michigan, “for labor performed by me for said corporation;" that the performance of such" labor was begun on September 1, 1887, and ended June 22, 1888, and the amount due him was $778.52. He then described the real estate and personal property upon which he claimed a lien; the personal property being the same that the attachment was levied upon.

The statute enacts that every person who shall furnish or perform any labor for any corporation organized for the purpose of mining, etc., in the Upper Peninsula of this State shall have a lien for the amount due therefor upon all the real and personal property of such corporation lying and being in such Upper Peninsula, which lien shall take precedence over all other debts, judgments, or decrees, liens, or mortgages against such corporation, except liens accruing to the State for taxes, fines, or penalties.

We think this statute is remedial in its character, and entitled to a liberal construction. The papers connected with the case show that the lien claimed was for personal labor performed by McLaren for the company while in charge of its works and property in said county as overseer and custodian of mine and property. The statute does not restrict the labor to any particular class of laborers or kind of labor performed. It only requires that it shall be labor furnished or performed for the corporation. *279We are of opinion that McLaren was entitled to a lien, under the statute, for the labor performed by him. The statute is silent as to when the lien accrues to plaintiff and attaches to the property. It must necessarily accrue and attach to the property as the labor is performed. It therefore had precedence in point of time to the levy of the attachment. The law does not provide for any notice. All persons are bound to take notice that unpaid laborers for a mining corporation in the Upper Peninsula, have a lien for their labor upon all the real and personal property of the corporation in that portion of the State. The lien may bo lost by laches, but not otherwise, unless-by payment or satisfaction, or voluntary release or-waiver.

The statute provides for the enforcement of the lien in general language. It says it shall be enforced in the same manner, as is provided in that chapter for the enforcement of liens against real and personal property. The chapter (How. Stat. §§ 8402-8404) provides for the ■enforcement of liens against personal property by commencement of suit by summons; and, if personally served upon the defendant, the suit proceeds to judgment as in personal actions so commenced. If personal service cannot be obtained, then the party is to proceed in all respects, as near as may be, as in suits commenced by attachment where ¡rersonal service is not obtained upon the defendant. McLaren issued a summons, but did not obtain personal service; and thereupon he pursued the way pointed out in attachment proceedings to obtain substituted service by publishing notice. His proceedings appear to have been regular, and his judgment is valid.

Counsel are mistaken in supposing that How. Stat. § 8145, has any application where no service is had upon any officer or agent of the corporation. That provides what shall be done when service is made upon *280officer or agent, but makes no provision where such service cannot be obtained. In such case the method to be pursued is pointed out by section 8404, which method was adopted by McLaren in this case. Complainant's lien, having accrued before the lien of the attachment, is entitled to priority; and he is entitled to the relief prayed for.

The decree of the circuit court will- be affirmed.

Morse and Long, JJ., concurred. Grant and Cahill, JJ., did not sit.