Shevlin v. Whelen, 41 Wis. 88

Shevlin v. Whelen

41 Wis. 88 | Wis. | 1876

Oole, J.

The court below found, and it is a conceded fact in the case, that the logs upon which a lien was claimed wrere cut upon land which was situated in Chippewa county until the county of Taylor was organized by chapter 178, Laws of 1875, when it became a part of the territory included in the latter county. The court likewise found, and the fact is admitted, that a portion of the labor upon the logs was performed before and a portion after Taylor county was organized, and that, at the time the petitions for liens were filed and this action was commenced, the logs were in Taylor county. The *92counsel for the appellants insists tliat it results from tírese facts, that, at the time of the filing of the petitions for liens and tire commencement of this action, there was no law creating a lien on logs or giving a remedy for enforcing a lien in Taylor county. This position of counsel seems to us correct, and is decisive of the appeal. This remedy is purely statutory, and is only given in certain counties named in the various statutes relating to that subject. See Tay. Stats., § 25, ch. 153, and ch. 186, Laws of 1861. The act organizing Taylor county does not profess to extend these lien laws to that county, but only provides that the county is “ erected and established with all the rights, powers and privileges by law granted to other counties of this state, and subject to the general laws established for county governments.” Sec. 2. No laws were in force in the county, except the general laws of the state. It is true, Taylor county was organized out of portions of, territory theretofore included in the counties of Clark, Marathon, Chippewa and Lincoln, and that in the three counties (first named, special lien laws were in force. But we do not see how that circumstance can affect the question. Upon what ground can it be maintained that laws which were peculiar, and limited in terms to Clark, Marathon and Chippewa counties, were extended to the new county on its organization? In the organic act, the legislature surely indicated no intention that the special lien law should be in force in Taylor county, hut, on the contrary, declared that this county should only be subject to the general laws of the state. If the intention had been to make the provisions of the lien law applicable in j this county, the legislature would have so enacted, as it did by ch. 32, Laws of 1876. The fact has been referred to, that a portion of the services were performed before Taylor county was organized, and a portion after. But the lien was given for services performed in Chippewa county on logs in that county. Before, however, any steps were taken to perfect the lien, and before it had ripened into a vested right, the land on which *93the logs were cut became a part of another county. The effect of this upon the plaintiff’s right of action was the same as though the law giving such right of action had been repealed. “Whatever a statute gives, which has not ripened into a vested right, a repeal of the statute may take away.” Eyan, 0. J., in Dillon v. Linder, 36 Wis., 344-349. An attempt was made to sustain the liens under ch. 153, E. S.; but the proceedings failed to show a compliance with that statute. It is very manifest that the plaintiff was seeking to enforce his right, not under the general law, but under the lien statute applicable to Chippewa county. This failing him, his lien is lost or destroyed.

The appellants McCartney and Whelm, who claimed to be the owners of the logs, appeared in the action and obtained possession of ‘the property attached, by executing and delivering to the sheriff an undertaking whereby they undertook to pay the plaintiff the amount of any judgment which he might recover. The circuit court held that because they bonded the logs, they were estopped from contesting the validity of the lien. "We are unable to perceive any ground for holding that they were estopped by giving the undertaking to obtain possession of their property. The giving of the undertaking was m mvitum, compulsory, to release the logs from the attachment, and to obtain a restoration of them. If the attachment was void, the bond given to procure its discharge was also void. Vose v. Cockcroft, 44 N. Y., 415, and cases referred to in the opinions. The case of Dierolf v. Winterfeld, 24 Wis., 143, contains nothing in conflict with this view. There the defendant in an attachment regained possession of the property by giving the undertaking required for the purpose, and after-wards attempted to traverse the affidavit for the attachment. The court decided that the undertaking stood in the place of the attachment, and that the affidavit was functus officio.

By the Oowrt.— The judgment of the circuit court, so far as it attempts to give the plaintiff a lien upon the logs, is re*94versed, and the cause reminded for proceedings in accordance with this decision.