48 N.W. 857 (Wis. 1891), Minton v. The Underwood Lumber Co.

• Citation: 79 Wis. 646,48 N.W. 857
• Docket Number: .
• Date: 05 May 1891
• Parties: MINTON, Respondent, v. THE UNDERWOOD LUMBER COMPANY, Appellant
• Court: Wisconsin Supreme Court

Page 857

48 N.W. 857 (Wis. 1891)

79 Wis. 646

MINTON, Respondent,

v.

THE UNDERWOOD LUMBER COMPANY, Appellant

Supreme Court of Wisconsin

May 5, 1891

Argued April 15, 1891.

APPEAL from the Circuit Court for Oneida County.

The case is fully stated in the opinion. The defendant, The Underwood Lumber Company, appeals from a judgment for the appellant for the full amount of his claim with interest.

Reversed and cause remanded.

For the appellant there were briefs by Miller & McCormick and Frank M. Hoyt, and oral argument by Mr. Hoyt. They contended, among other things, that the petition for a lien was not filed within the thirty days allowed by law, and that the filing indorsed thereon was not proof.

For the respondent there was a brief by Levi J. Billings and Bardeen, Mylrea & Marchetti, and oral argument by S. A. Harper and A. G. Zimmerman.

OPINION

[79 Wis. 647] HARLOW S. ORTON, J.

The plaintiff's claim consists of his own labor performed for McPhee & Mitchell, the contractors, in driving the logs of defendant on the Wisconsin river, a certain number of days, between the 15th day of April and the 23d day of May, inclusive, 1889, at $ 2.50 per day, and as the assignee of the claims of four other persons who performed labor on the same drive a certain number of days at the same price. By the petition for a lien upon the logs of the defendant company in the driving of which said labor was performed, and by the complaint, the last day's work was performed on the 22d day of May, 1889. By leave of the court the petition and complaint were amended to make said day the 23d day of May, 1889. The petition was filed on the 22d day of June thereafter.

The answer alleges that the defendant owned the logs mentioned in the complaint, marked on the side "T. I. N." and on the end "L. I. Z.," and that they were driven on the Wisconsin river by McPhee & Mitchell between the 25th day of April and the 22d day of May, 1889, on contract, and that they had been paid therefor, and that all the labor performed in driving said logs was performed for them. The answer denies that the plaintiff or his assignors performed any labor on said logs after the 22d day of May, 1889, and denies that the petition was filed on the 22d day of June thereafter, and alleges ignorance of all allegations not admitted or denied.

On the plaintiff's behalf the testimony tended to prove that he and his assignors performed the labor first for several days in driving logs marked "Diamond V.," "D. & [79 Wis. 648] S.," and "W. M.," belonging to other parties than the defendant, before coming down to the point where the defendant's logs were mingled with the drive,--the plaintiff two days, and the assignors eight or ten days,--and that the claim for such labor is a part of the plaintiff's claim in this action. And the testimony for the plaintiff tended to prove further that the plaintiff and his assignors worked the number of days, and at the price, and on all the lots of logs, as alleged in the complaint. In addition to this oral testimony, the plaintiff introduced the time-checks given by McPhee & Mitchell, showing the number of days the plaintiff...