142 Wis. 55 | Wis. | 1910
After averring that the plaintiff is a foreign ■corporation licensed to do business in Wisconsin, the complaint set forth in detail the ownership by the David Tozer Company of certain described lands in Wisconsin and Minnesota, and by the plaintiff of certain described lands in Wisconsin. Eor the purpose of having the timber on these lands cut, hauled, and delivered afloat in the Spruce river during the logging season of 1908-1909, the David Tozer Company made two contracts and the plaintiff one contract with the defendant Sarkis J oseph. The contracts were substantially similar in their covenants and requirements. The two made by Sarkis J oseph with the David Tozer Company were made on October 24, 1908, and that by Sarkis Joseph with the plaintiff on December 26, 1908. Sarkis Joseph, for the purpose of carrying out these contracts, established three camps, two of them for housing and feeding the men and teams necessary to carry out the David Tozer Company contracts, and one for like purposes with reference to all three contracts. The logs from the David Tozer Company land were marked with a certain log mark; those from the plaintiff’s land with a different log mark. A quantity of logs was cut and delivered in the 'Spruce river. The logs
Numerous averments are made tending somewhat to show that Sarkis Joseph performed substantially each of these three contracts. No express averment is found showing the extent to which performance was carried or the number or quantity of logs delivered. But this is not essential with respect to the lien claimants defendant.
Under the statutes of this state (secs. 3329-33426, Stats. 1898), which give to any person who shall do or perform any labor or services in cutting, hauling, felling, etc., of logs, or timber, etc., a lien upon such material for the amount due or to become due for such labor or services, eleven person employed by or contractors of Sarkis Joseph filed such liens against these logs so delivered and being in the rivers above described. Among these eleven persons were the defendants M. II. Garroll, who filed a lien for $330, Maggie Gar-roll for $160.93, Joe Garroll for $83.33, Willie Garroll for $31, and Jennie Garroll for $63.60. These defendants last above named were employed by Sarkis J oseph, and each performed labor and services entitling him or her to a lien on the logs. This labor and service was paid for in part by Sarkis Joseph, and the latter also furnished merchandise to these lien claimants for which they owed Sarkis J oseph, and the amount thus owing from each, if applied to or offset against his or her claim for lien, would extinguish such claim. The defendant Sans Wester also filed a lien, for $371.44 for the labor and services of himself and his team of horses, part of which has been paid, and Wester is indebted to Sarkis Joseph in such amount that, if this indebtedness were applied in offset of his lien claim, the lien claim would be thereby extinguished. E. O. Krevner has filed a lien for $1,275, which has been paid in part, and Kreiner is indebted to Sarkis Joseph in an amount equal to or in excess of the lien claimed and it should be offset against the latter; that if this be offset or applied in payment, the lien claim of
The lien claimants jointly demurred to the foregoing complaint on the ground that it did not state facts sufficient to constitute a cause of action against them and also for mis-joinder of causes of action. The defendant Sarkis Joseph and the defendant Charles Domitt each separately demurred ■on the same grounds.
It is an elementary rule of equity jurisprudence that, where the jurisdiction of a court of equity exists over some ■substantial portion or incident of the controversy, such jurisdiction will extend to and embrace the whole subject matter
“Real suretyship arises where certain specific property can be taken to enforce payment of another’s debt, or the performance of some duty owing by another, and the owner of such property, if he would save it, must pay or perform, but he is not personally liable in damages.” Childs, Suretyship & G. p. 14, par. 22.
With reference to the other lien claimants defendant, the complaint must be held to mean that, having a lienable claim, ;and a lien filed for a balance due for labor and services on these logs for which they were entitled to a lien, by collusion ■with the defendant Barkis J oseph and with his consent they refrained from applying, against this balance of their lien-■able claim, demands due from each lien claimant to Sarkis J oseph which were equitably the subject of setoff against the lienable claim and which if set off would extinguish that claim. The lien claimants in this action thus must, except for the setoff, have all the advantages which could result to •them from an attachment of the logs and a foreclosure of •their liens by separate and independent actions, and the liens are in fact foreclosed by the decree to be made in an action like this if anything is found due on either of such liens, and, unless redeemed, proceed to a single sale in behalf of all who prevail. If the lien claim is found to have been ■discharged by payment or equitable setoff there is finding and judgment to that effect. The demurrers of the lien claimants were therefore properly overruled. The principal debtor is always a necessary party to such an action, and his -demurrer was properly overruled.
By the Court. — The order overruling the several demurrers is affirmed.