Single v. Barnard

29 Wis. 463 | Wis. | 1872

Cole, J.

The first objection taken on the brief of the counsel for the plaintiffs is, that ’ the verdict is insufficient, for the reason that it does, not dispose of all the material issues. The action was replevin. It was alleged in the complaint that’ the plaintiffs were the owners and entitled to the possession of the lumber which had been wrongfully and unjustly taken by the defendant The answer averred that the deféndant had'levied upon and held the property by virtue of an execution against one Daniel McPhail, and in favor of one John Brown, and trav-' ersed the allegations of the complaint ' The jury found, in substance, that the defendant was the owner of a special’property in the lumber to the amount of the execution in his hands, stating the amount; that he was entitled to the possession óf the property; that the plaintiffs had unjustly taken and de-’ tained it; and assessing the defendants damages for such unjust taking and detention. It is objected that the verdict is silent as to the general ownership and value of the property! It 'appears to us that the verdict was sufficient upon the facts disclosed on the trial. The plaintiffs retained thé' possession of the property and run it to market, an arrangement' having been entered into betwéen the defendant and Mr. Mclndoe on their ’ behalf, by which the sheriff was to release ther lumber upon the amount of money due upon the' execution being deposited to abide tbe determination of the question whether the defendant had a special property therein by virtue of the levy. The effect of this arrangement, obviously, was to render all the issues immaterial, except’the' single one whether the defendant, as sheriff, had a special property in the lumber to the amount’ of the execution, and was entitled to the possession. The court charged, among other things, that the plaintiffs were the general owners, and entitled to the possession, unless the defendant had a paramount lien or interest by virtue of the levy. And, therefore, the only real issue between the parties was conceded to be whether the defendant had such special property to the exclusion of the general owners. The verdict fully disposes of that issue.

The origin of the defendant’s title to the lumber in controversy was through or by means of an attachment proceeding, wherein John Brown was plaintiff and McPhail was defendant, to satisfy a lumberman’s lien for services in cutting and running logs. The sheriff attached logs which were supposed to be put in by McPhail and others, and marked “M. S.” sufficient to satisfy this lien. The logs, when seized on the attachment, were in a pond in the Wisconsin river, above the village of Wausau and the mill of Mclndoe. A few days after the attachment was served, Mclndoe as principal, and the plaintiff Stewart as surety, gave the sheriff a bond in the penal sum of $2,000, reciting that a writ of attachment had issued in the action of Brown, plaintiff, and McPhail and Mclndoe, defendants, on which writ the sheriff had seized and held possession of a certain number of white pine saw logs bearing the mark “ M. S.. ” estimated, etc., and further reciting that the logs were located in the booms at the village of Wausau, and that the same must be put through the mills there in order to hold the same. The condition of the bond was, that, if Mclndoe should saw these logs at his mill without charge to the sheriff or the plaintiff in the attachment suit, claiming no lien on the logs for such sawing, and should pile all the lumber manufactured from the logs and deliver the same to the sheriff, “ it being understood that the same shall not in fact go out of the control of the said Joseph Barnard, sheriff as aforesaid, and to be at all times subject to the order and control, custody and possession of the said Joseph Barnard, sheriff as aforesaid, or his successor in office, as the court may order in said action, and be subject to the order of the court in said action at all times,” then the obligation to be void. The circuit court afterwards, in the action of Brown v. MoPhail, adjudged and determined that the plaintiff in that suit had a valid lien upon the logs seized and levied upon by the sheriff on the attachment against MePhail, and ordered that the sheriff proceed and sell the property to satisfy this lien and judgment. In the meantime the logs, or the most of them, had been manufactured into lumber by Mclndoe, according to the agreement in the bond. The claim of the defendant is, that the lumber in question was manufactured from the logs upon which the' court had decided that a laborer’s lien existed in favor of John Brown.

But it is now insisted on the part of the plaintiffs, that there is no evidence in this case that Brown was entitled to a lien upon the logs seized by the sheriff on the attachment, and that they are in no way bound by the judgment which was rendered in that case, adjudging a lien upon them. We think, however, the plaintiffs are not in a position to go into that inquiry, for this reason. The plaintiffAfeMwi united with Mclndoe in the execution of the bond above referred to, in which it is stipulated and agreed that the logs seized upon the writ of attachment should be subject to the order of the court in that action. And, as the circuit court remarked in its charge to the jury in this case, Steioart and Mclndoe, by the execution of that bond, assumed the position of receiptors of that property, engaging to treat the same in a certain manner, and were bound to return it to the defendant. The circuit court, in the attachment suit, ordered it to be sold to satisfy the lien. Mclndoe and Stewart had obligated themselves to have and hold the property subject to this order. In the face of this undertaking, the plaintiffs cannot say that they are in no way bound by the order and proceeding in the lien suit. Eor they are partners, and the engagement of Stewart is binding upon the firm in this matter. And Stewart is certainly now concluded from going into the question whether the logs seized upon the attachment were the identical ones upon which, the labor.and services were performed by Brown.

But again, it is said there is no evidence to identify the lumber in dispute as being that which was manufactured from the logs attached. This objection must receive very much the same answer as the last one. Mclndoe, by his bond, agreed to pile all the lumber manufactured from those logs, so that it could be identified,- and be subject at all times to the control of the sheriff and order of the court. It is his wrong if the lumber has become mixed with other lumber so.that it cannot be identified, and the plaintiffs cannot take advantage of Mclndoe’s failure to pile the lumber separately according to his agreement.

It is further objected that the court improperly admitted in evidence the judgment roll in the case of Brown v. McPhail, because there was no sufficient affidavit made to authorize the issuing of a writ of attachment. This objection is untenable. The affidavit states the indebtedness with definiteness and particularity, and shows that such indebtedness was for labor and services done and performed upon the logs therein described. It likewise states that a petition in writing, claiming a lien upon the logs, had “ been made and filed ” by the plaintiff.

The last objection taken is to the sixth instruction given by the court. The idea intended to be conveyed by that instruction seems to be this: that the defendant, by accepting a deposit of money sufficient to satisfy the execution, and releasing the lumber in order, that the plaintiffs might run it market, did not thereby waive - his right under the levy. It is plain that the object in making the deposit, was to apply the money deposited in satisfaction of the execution, providing it was determined that the sheriff had a special property in the lumber. The deposit could have been made for no other purpose.

We think the judgment of the circuit court is correct, and must be affirmed.

• By the Court. — Judgment affirmed.