Winslow v. Urquhart

39 Wis. 260 | Wis. | 1875

Lvon, J.

We adhere to the decision of this court in Munger v. Lenroot, 32 Wis., 541, and must therefore hold that the statutes under which the lien proceedings were had were valid laws, although they did not require that the plaintiffs, who were the general owners of the logs in controversy, should be made parties to such proceedings; and further, that such proceedings are not invalid merely because they were not made parties thereto. But, on the authority of the same ease, the plaintiffs may, in this action, contest the right of Brooks, the plaintiff in those proceedings, to enforce a lien against the logs. This they have done. If they have shown that he was not entitled to such lien, the title to the logs claimed by the defendant solely under the execution sale necessarily fails, and the plaintiffs are entitled to judgment.

The question whether Brooks was entitled to a lien upon the logs is to be determined upon the record of the proceedings before the justice; for by that record only is the validity of the lien judgment attacked. It may here be observed that such judgment is prima facie regular and correct, and must be held a valid judgment unless it appears affirmatively that it is not. To uphold it resort will be had to all reasonable presumptions consistent with the record. This rule is elementary, and its application to the case will dispose of some of the objections to the validity of the lien judgment urged on behalf of the plaintiffs. Other objections to the validity of such judgment, not disposed of by the rule just stated, will now be considered.

1. The services for which the lien judgment was rendered consisted in cooking food for the men engaged in driving the logs in controversy; and it is earnestly contended by the learned counsel for the plaintiffs, that the statute under which the lien proceedings were instituted gives no lien for such services. The statute (Tay. Stats., 1768, § 25) gives to any person “ that shall furnish any supplies, or that may do or perform any labor or services in cutting, falling, hauling, driving, running, rafting, booming, cribbing or towing any logs or timber,” in certain counties therein named, including Oconto county, a lien on such logs or timber “ for the amount due for sucb supplies, labor or services.” In Young v. French, 35 Wis., 111, the opinion is expressed that one who cooks for the men at work on the logs directly, is entitled to a lien thereon fon his wages under the statute. We have reviewed the question, and think the opinion there expressed is correct. It seems to us that the person who cooks the food for the men who fall the trees and work directly and immediately upon the logs or timber, performs service in cutting, falling, driving, etc., such logs or timber, within the meaning of the statute, equally with those who use the axe, the saw or the team to the same end. These are all engaged in the business of manufacturing trees into logs and timber, and transporting the same from the forest to a market; and to accomplish the common purpose the labor of each in his department is necessary. Moreover, he who cooks the food “ furnishes supplies,” equally with the person who furnishes the raw materials. The acts of both are essential to the supplying of the men with food, and both “ furnish supplies,” within the meaning of the statute. ' Both also render “ services on logs or timber,” within the meaning of the averment to that effect required in the affidavit to be annexed to the attachment. Tay. Stats., 1769, § 28.

The statute under consideration was enacted in the interests of labor, and a sound public policy requires that it be liberally construed. The construction contended for on behalf of the plaintiffs is too narrow, and, if adopted, would go far to defeat the objects and purposes -of the statute. We cannot adopt it, but must hold that the claim of Brooks in the attachment suit was within the statute.

2. The next objection to the validity of the lien judgment is, that the affidavit annexed to the writ of attachment is fatally defective in that it is not set forth that the indebtedness therein mentioned was due upon contract, express or implied, and Blackwood v. Jones, 27 Wis., 498, is cited to support the objection. It is sufficient to say that Blackwood v. Jones was a case commenced by attachment in a justice’s court under the general attachment law applicable to such courts (R. S., ch. 120, sec. 99), and has no application to the proceedings before us. The statement of indebtedness in the affidavit in these proceedings seems to be in strict compliance with the statute. Tay. Stats., 1769-70, §§ 28, 33. "We think the objection is not well taken.

3. The only other objection to the validity of the lien judgment necessary to be considered is, that neither the affidavit annexed to the attachment, nor the complaint in the attachment suit, shows that the lien claimed was recorded in the office of the lumber inspector for the proper lumber district.' It is claimed on behalf of the plaintiffs that such record is made essential to the validity of the lien by sec. 12, ch. 167, Laws of 1864 (Tay. Stats., 757, § 19).

The statute of 1862, as amended, under which the attachment suit was brought, requires that a petition or statement of the lien shall be filed in the office of the clerk of the circuit court for the proper county, by a time therein specified; that the affidavit annexed to the attachment shall state that the plaintiff has filed such petition or statement; and that the plaintiff shall allege the filing thereof in his complaint. Tay. Stats., 1769, 1772, §§ 27, 28, 41. Beyond all question, the “ proper county ” in which to file the petition or statement in Brooks v. McCaulley, was the county of Oconto; for the services were rendered by Brooks in that county, and the logs remained therein until seized on the attachment. The allegations of the filing of the petition or statement of lien required to be inserted in the affidavit and complaint, clearly relate to tliq filing thereof in the office of the clerk of the circuit court, and not to the reoorcl'mg thereof in the office of the lumber inspector. In the proceedings before us we find a substantial compliance with the statute.

It is proper to add that we do not understand that the recording of a petition or statement of the statutory lien for supplies or for labor and services on logs or lumber, in tbe office of tbe lumber inspector, is essential to tbe validity of sucb lien.

We conclude that tbe plaintiff failed successfully to impeach tbe lien judgment, and hence; tbat tbe defendant obtained a good title to tbe logs in controversy by bis purchase thereof at the execution sale, and should have bad judgment for a return of tbe logs or tbe value thereof, in ease a return could not be bad.

Tbe judgment must therefore be reversed; but we cannot direct tbe proper judgment to be entered for tbe defendant, because tbe value of tbe logs was not ascertained on tbe trial, and cannot be ascertained from tbe testimony. Another trial is necessary to supply sucb defects in tbe proofs.

By the Cowrt. — Judgment reversed, and a veni/re de novo awarded.