Fishback v. Foster

• Decision Date: 04 January 1922
• Docket Number: Civil 1913
• Citation: 23 Ariz. 206,202 P. 806
• Parties: FERDINAND FISHBACK, as Administrator of the Estate of ARTHUR FISHBACK, Deceased, Appellant, v. E. J. FOSTER, Appellee
• Court: Arizona Supreme Court

202 P. 806

23 Ariz. 206

FERDINAND FISHBACK, as Administrator of the Estate of ARTHUR FISHBACK, Deceased, Appellant, v. E. J. FOSTER, Appellee

Civil No. 1913

Supreme Court of Arizona

January 4, 1922

APPEAL from a judgment of the Superior Court of the County of Navajo. Andrew S. Gibbons, Judge. Judgment reversed, with directions.

Mr Thorwald Larson, for Appellant.

Mr Sidney Sapp and Mr. W. E. Ferguson, for Appellee.

OPINION

McALISTER, J.

This is an action in replevin by Ferdinand Fishback, as administrator of the estate of Arthur Fishback, in which he seeks to recover from E. J. Foster, defendant, possession of an automobile, and from a judgment against him and a denial of his motion for a new trial he appeals.

A seven-passenger automobile, bearing Oklahoma license No 84519 for the year 1918, was left for storage in the Jackson Garage at Holbrook, Arizona, in December, 1918, or January or February, 1919, and remained there until February 7, 1920. Harry Jackson was owner of the business carried on at this garage when the car was received, but C. H. Edmunds became its proprietor and the assignee of its accounts, including those for storage, on July 7, 1919, as a result of a deal between him and Jackson. The name of the owner of this car did not appear on the books of the garage, and Edmunds testified that he was unable to ascertain to whom it belonged, so he advertised in the "Holbrook Tribune" of the issues of January 16 and 23, 1920, that he would sell it at public auction on January 26, 1920, under and by virtue of sections 3673 and 3674, Revised Statutes of 1913, for the purpose of satisfying his lien thereon for a storage charge of $91 and costs of sale, describing it in the notice as one Oldsmobile automobile, owner unknown. The sale, however, did not occur that day, but was continued by public oral announcement in the presence of those attending to February the 7th following, when the car was sold to E. J. Foster, the highest bidder, for $133, a bill of sale being then and there executed and delivered. Appellee bases his ownership and right of possession upon the validity of this sale, while appellant contends that he was not divested of his title and right to possession thereby, because there is in Arizona no lien on an automobile for storage charges in favor of garagemen, and consequently all proceedings had in the foreclosure of one are void. Whether or not Edmunds, the garage-keeper had, under the facts of this case, a lien covering his charge for storage, is the principal query presented by this appeal.

The ruling in favor of appellee could only have been based upon the theory that he did, but it does not appear from the findings, judgment, or any other portion of the record what kind of a lien -- statutory, common law, or equitable -- though according to the notice of sale, which included two other automobiles belonging to different persons, the foreclosure proceedings were had under and by virtue of sections 3673 and 3674, Revised Statutes of 1913, the former of which authorizes a person who has repaired with labor or material, or both, any article, implement, utensil, or vehicle, to retain possession thereof until the amount due for such repairs is paid, while the latter section provides for a sale of the property retained for the purpose of satisfying the lien thus created. There was, however, no charge for repairs, but only for storage on the car in question; hence no lien could have arisen thereon under section 3673. But, notwithstanding the notice was that the lien created by section 3673 would be foreclosed, it is now claimed that a garageman's lien for storage attached under paragraph 3672 of the Revised Statutes of 1913, reading as follows:

"3672. Proprietors of livery or public stables, shall have a special lien on all animals placed with them for feed, care and attention, as also upon such carriages, buggies, vehicles or other equipments, as may have been placed in their care, for the amount of the charges against the same."

The authorities, however, seem to be agreed that a statute giving liverymen a lien for the care and keep of animals, or for keeping or storing vehicles, cannot be extended to include a lien on automobiles for storage charges. "The garage-keeper is like unto the livery-stable keeper, but he comes not within the language of the statute." ( Smith v. O'Brien, 46 Misc. 325, 94 N.Y.S. 673), and "statutory liens cannot be extended by the courts to cases not provided for the statute." 17 R.C.L. 600, par. 7. Berry on Automobiles, third edition, in paragraph 1317, states the rule thus:

"Statutes giving livery-stable keepers a lien for boarding or pasturing animals, or who in connection therewith keeps or stores vehicles, do not apply to garage-keepers. The livery-stable keeper had no lien at common law, so a garage-keeper must have a statute of his own if he is to have a lien." To the same effect are the following: Babbitt on the Law Applied to Motor Vehicles, § 672; Huddy on Automobiles, § 881; Smith v. O'Brien, supra.

It is true, however, as contended by appellee, that the term "vehicle" has been held to apply to automobiles and properly so, but, even though a garage be a modern substitute for the livery-stable, to hold that the term "livery-stable keepers" includes garagemen would be contrary to the fact, and constitute judicial legislation, pure and simple. There is no question but that a garageman has, under section 3673, in his capacity as a "mechanic, artisan or other workman," a lien on an automobile (it being within the class designated "vehicles"), for his labor, material or both furnished in its repair, but he must look to the...