Dorestan v. Krieg

• Decision Date: 12 October 1886
• Citation: 29 N.W. 576,66 Wis. 604
• Parties: DORESTAN AND ANOTHER v. KRIEG AND OTHERS.
• Court: Wisconsin Supreme Court

66 Wis. 604

29 N.W. 576

DORESTAN AND ANOTHER

v.KRIEG AND OTHERS.

Supreme Court of Wisconsin.

October 12, 1886.

Appeal from county court, Milwaukee county.

Action brought by the plaintiffs, Enno Dorestan and Udo Dorestan, against the defendants, Francis Krieg, Bernhard Gross, David Hecht, and others, to enforce a mechanic's lien claimed by plaintiffs, as subcontractors, for materials furnished by them to the defendant Krieg, who was principal contractor, in relation to certain work done on the house of defendant Gross. Hecht was a creditor of Krieg, and, before the bringing of this action, had sued Krieg and garnished Gross. The case was tried before the court without a jury, and from the findings and order the plaintiffs appealed.Austin & Runkel, for appellants, Enno Dorestan and another.

Frank M. Hoyt and M. N. Lando, for respondents, Francis Krieg and others.

TAYLOR, J.

This action was originally commenced in the county court of Milwaukee county by the appellants, to foreclose a lien, claimed by the appellants as subcontractors, for materials furnished by them to the defendant Krieg, as principal contractor, who was painting, etc., a building for the defendant Gross. The material facts in the case are as follows:

(1) The appellants had furnished to the respondent Krieg, who was contractor for painting, etc., a house for the respondent Gross, paints, oils, glass, etc., between the twentieth of December, 1884, and the seventeenth of April, 1885, of the value of $175.35, which Kreig had used in performing his contract with Gross, and for which Kreig remained indebted to the appellants.

(2) That on the eleventh of May, 1885, the appellants served a notice of their claim of lien for the debt due to them from Krieg upon the respondent Gross; and afterwards, in July, 1885, commenced an action to foreclose their lien for the value of the goods so furnished to said Krieg, under the provisions of sections 3315-3321 of the Revised Statutes.

(3) To the complaint in this action the respondent Gross answered, denying that Krieg had furnished his contract according to its terms, and also denying that there was any money due from him to said Krieg; and, for a further answer, he set up that the money due, or to become due, to Krieg on his contract had been garnished by the respondent Hecht before the appellants had served their notice of lien, viz., on the eighth day of May, 1885.

(4) The case remained in this condition until the November term of the court, in 1885, when, by stipulation and consent of all the parties, Gross paid into court the sum of $190; that being the amount then admitted by him to be due from him to the respondent Krieg, on his contract.

(5) The following stipulations were entered into by the parties:

“By stipulation, David Hecht above named, as a defendant, was permitted to file his answer, setting up his claim of priority of lien by reason of certain garnishee proceedings by him instituted against the defendant Gross in justice's court, as garnishee of the defendant Krieg. It was also stipulated that the defendant Gross should pay into court the sum of $190, by him owing to the defendant Krieg, as balance due on the contract price of said building. It was further agreed that there was a little finishing to a couple of doors in said house to be done by said defendant Krieg, and that he should complete said finishing for said defendant Gross. It was also stipulated that the said question of priority of liens, as between said Hecht, as garnishee, and the plaintiffs, as subcontractors, should be submitted to the court upon the pleadings and papers on file herein, and also the question of the right of the plaintiff to recover full costs, as against the defendant Gross. The following are the stipulations referred to:

‘[Title of cause.] It is stipulated and agreed by and between the plaintiffs and defendants that the terms mentioned in certain articles of arbitration dated November 11, 1885, between Francis Krieg and Bernhard Gross, in relation to the matters mentioned in the complaint in this action, shall control herein, and that the sum therein mentioned, subject to the conditions of said arbitration, be deposited in this court upon the performance of the condition of said arbitration; that said money be paid into court, to be paid out as the court shall direct, after hearing parties as to the question of preference and priority of right to the said moneys, or any portion thereof, and also to the question of costs of these proceedings. It is further agreed that David Hecht, garnishee mentioned in the answer of said Gross, be and he hereby is made a party herein, the same as if an order of interpleader had been made, and that he is entitled to the moneys so to be deposited in court, unless the court shall decide that the plaintiffs herein have a prior lien thereto to the amount thus to be paid into court; said Hecht to file an answer, and that the issue raised by such an answer shall be tried upon the record, without any other or further evidence. A disputed question between the plaintiffs and defendants, of and to the amount of $1,500, to be submitted to the court upon proofs to be submitted.

AUSTIN & RUNKEL,

+----------------------------------------------------+
                ¦Dated November   12, 1885.¦Attorneys for Plaintiffs.¦
                +----------------------------------------------------+
                

N. PERELES & SONS, and

E. P. SMITH,

Attorneys for Defendants.

FRANK M. HOYT,

Attorney for David Hecht.' ”

The case was then tried by the court without a jury, and on the trial it was admitted by the respective parties that the complaint of the appellants and the answer of Hecht were true.

After the hearing, the court made the following findings and judgment: “That, as a matter of law, of the said sum so paid into court the plaintiffs are entitled to the value and price of articles furnished by said plaintiffs to said defendant Krieg on the sixteenth day of April, 1885, and within thirty days of notice served by said plaintiffs as subcontractors; and that out of the balance of said sum so paid into court said defendant Hecht is entitled to be paid the sum of $163.31, being the amount of the judgment recovered by said Hecht against said Gross, as garnishee of said Krieg.” And thereupon it was ordered by the court “that the clerk of the court pay to said plaintiffs, and to said defendant Hecht, the sums respectively adjudged to them, as above provided, out of the sum so deposited in court;” and it was further ordered “that, as between said plaintiffs and the said defendants Gross and Hecht, no costs be allowed to either party.”

To these findings and order the plaintiffs duly excepted, and appeal therefrom to this court.

They allege for error that the circuit court should have found in their favor; that their whole claim ought to have been paid out of the money in court, instead of only so much thereof as was due for articles sold and delivered to Krieg within 30 days previous to the day of the service of notice of lien upon the said respondent Gross; and they further allege as error that the court did not adjudge that they should recover costs against the respondents Gross and Hecht.

The material questions arising on this appeal are (1) whether the plaintiffs, as subcontractors under Krieg, have a lien for the value of all the goods furnished to Krieg, the contractor, and which were used by him in the work done upon the defendant Gross' house, or whether his lien is limited to the value of such articles only as were furnished to Krieg within 30 days next previous to serving their notice of claim of lien upon Gross. (2) Whether Hecht, as creditor of Gross, having served his process of garnishment upon the defendant Gross before the plaintiffs served their notice of lien upon the said Gross, should be preferred to said plaintiffs for the amount found due to him from Krieg in such garnishee action, out of such sums of money as should be found due from Gross to Krieg at the time the garnishee action was commenced.

It would seem, from the statement of the law as made by the learned county judge, that he was of the opinion that the plaintiffs should be preferred, notwithstanding their notice of lien was not served until after the garnishee proceedings were commenced by the service of the summons and notice of garnishment upon Gross. Such finding did not, however, if erroneous, prejudice the respondent Hecht, if the other finding of the learned judge was correct, viz.: that the plaintiffs and appellants had a lien and claim against the defendant Gross, only for the value of the articles furnished to Krieg within 30 days previous to the service of his notice of claim for a lien; as the evidence shows that the value of the goods so furnished was less than the difference between the claim of Hecht, as allowed by the court, and the sum of $190, which Gross had paid into court for the benefit of the plaintiffs and the defendants Hecht and Krieg. We must therefore determine the two questions above stated.

Were the plaintiffs limited in the extent of their claims for a lien, as against Gross, to the value of the articles furnished to Krieg within 30 days next previous to the giving of his notice as required by the statute? After a careful reading of the statute, we think this question should be answered in the negative. Section 3314 gives a lien to the original contractor upon the building and premises which is to have preference to all other liens placed on the premises, after the commencement of the work by the contractor, without giving any notice whatsoever. Section 3315 provides “that a sub-contractor of the original contractor, who performs work or labor for, or furnishes any materials to, a principal contractor, in any of the cases mentioned in section 3314, shall be entitled to the lien and remedy given by this chapter, if within 30 days after performing such work or labor, or furnishing such materials, he shall give notice...