Grand Rapids Chair Co. v. Runnels
| Decision Date | 25 October 1889 |
| Citation | 77 Mich. 104,43 N.W. 1006 |
| Court | Michigan Supreme Court |
| Parties | GRAND RAPIDS CHAIR CO v. RUNNELS, SHERIFF. |
Error to circuit court, Newaygo county.
Replevin by the Grand Rapids Chair Company against Allick G. Runnels sheriff of Newaygo county, Mich. Plaintiff brings error. Pub Acts Mich. 1887, No. 147, entitled "An act to protect laborers," provides, that in actions for personal services rendered by plaintiff, he shall, in addition to all other costs, recover an attorney's fee of five dollars to be taxed with the other costs.
A sheriff's return, showing service "on Charles C. Comstock, as president of the Grand Rapids Chair Co., who is the owner of said goods," is sufficient to show service on the company.
Butterfield & Keeney, for appellant.
Andrew Hanson, for appellee.
The questions in this case to be determined grow out of proceedings under Act No. 229 of the Public Acts of 1887, known as the "Log-lien Law." It was agreed by the contending parties in the court below that there were no issues of fact to be submitted to the jury, and thereupon the circuit judge of the Newaygo circuit directed a verdict in favor of the defendant. The action was in replevin, and the defendant took judgment for the return of the property, which consisted of 898 red oak and white oak logs, valued by the appraisers at $750. The facts developed on the trial were these: At the time this suit was commenced, and at the time the logs were cut, Lyman T. Kinney, of Grand Rapids, Mich., owned the lands upon which they grew. On the 17th of September, 1887, he entered into an agreement in writing with one John G. Gunsolus by which he sold all the red oak and white oak timber upon these lands to Gunsolus, said timber to be removed on or before the 1st day of April, 1888. The timber was to be paid for before it was loaded on the cars for shipment, at the rate of $4 per 1,000 feet stumpage, Doyle's scale. It was agreed that the title to the timber should remain in said Kinney until it was paid for. Gunsolus contracted to sell the logs to be cut upon these lands to the Grand Rapids Chair Company, and made a contract with one Willard B. Lyons to cut and put them in. The logs in issue here were cut in the winter of 1887 and 1888, and, when taken under the writ, were at or near the Field station, so-called, on the east side of the spur or side track of the Chicago & West Michigan Railway Company in the township of Wilcox, in the county of Newaygo. Lyons became unable to pay all his men in full, and, on the 6th day of March, 1888, William Clark and 18 other men, who had been employed by Lyons in getting out these logs, filed their liens with the county clerk of Newaygo county, and on the same day each made an affidavit before Samuel M. Reed, a justice of the peace of said county, and thereby commenced under the statute 19 different suits against the logs and Willard B. Lyons. The writs of attachment were put in the hands of the defendant, Runnels, sheriff of Newaygo county, who on the same day levied upon the logs and served a certified copy of each writ upon Lyons. He also returns in each case that on the 9th day of March, 1888, he "served at the city of Grand Rapids, Mich., a certified copy of within writ on Charles C. Comstock, as president of the Grand Rapids Chair Company, who is the owner of said goods and chattels described in within writ." The justice's docket shows in each case that the writ was returnable March 14, 1888, at 9 o'clock A. M., at his office in the township of Wilcox. After reciting the substance of the sheriff's return as above, the docket proceeds: (being in each case the amount due from Lyons to the plaintiff for labor performed in getting out the logs) "from said defendant; and that the same is due for work and labor performed by the plaintiff in skidding, cutting, hauling, loading, and chopping a certain lot of red and white oak saw-logs, as mentioned in plaintiff's declaration; and that the plaintiff has a lien upon said described property for said amount." The judgment in each case was for the amount of labor as found, and $15.05 costs; $5 of such costs being for the attorney fee authorized by such act. Executions upon each of these judgments were issued and placed in the hands of said sheriff March 19, 1888. Levy was made on the logs under these executions. The secretary of the plaintiff company demanded these logs of the sheriff, and upon his refusal to deliver them the plaintiff brought this action in replevin. For the consideration of one dollar, "to him in hand paid," Lyman T. Kinney, on the 29th of March, 1888, assigned his title in and claim to said logs to the plaintiff. It seems also that the company had acquired Gunsolus' interest in the logs before the lien proceedings were instituted. The secretary of the chair company testified that Kinney had not been paid in full for the logs on the 6th of March, 1888, when the lien proceedings were instituted, and Kinney testified that he was the owner of them on that day. No notice of the lien proceedings were given to Mr. Kinney.
It is urged, as the first and most serious objection to the judgments in these lien cases, that Kinney, being the owner of the logs at the time these suits were commenced, was entitled to notice of the proceedings, and as he had none, either actual or constructive, the judgments, as far as the logs are concerned, are invalid and void for want of jurisdiction, and therefore, there being no valid lien upon them, the plaintiff, at the time of the commencement of the replevin suit being the owner of them, was entitled to the possession of them, and the verdict and judgment should have passed in its favor. To this the defendant replies that the Grand Rapids Chair Company was the owner of these logs, and that [77 Mich.
110] notice was given such corporation by service upon its president. I think, under the circumstances of this case, that Mr. Kinney was not entitled to notice. If the proper notice was given to the Grand Rapids Chair Company it was sufficient. This plaintiff corporation was in reality the owner of these logs. It hired Gunsolus to put them in, and had acquired all his interest before the lien proceedings were commenced. It is true that Kinney reserved the title to them until they were paid for; but he was paid for them before this replevin suit was instituted, and no rights of his appear to ever have been jeopardized by the attachment and seizure of the logs under the attachment. The Grand Rapids Chair Company claimed that the logs were in transit to them at the time the sheriff seized them, and their secretary so testifies. They had notice of the proceedings, as there is no dispute but Comstock was the president of the corporation when service was made upon him. There can be no good reason for defeating these liens upon a mere technicality which injures no one. The title which Kinney had in these logs, if he had any that he could assert, was one depending on a contingency which did not happen, or rather held as a security against the happening of non-payment. As the matter stands Kinney has no concern, and never had, with these liens. The real party affected now, and at all times heretofore, by them is the plaintiff in this suit.
It is claimed, however, by plaintiff's counsel that the return of the sheriff does not show the service of any process upon plaintiff. It shows a service on "Charles C. Comstock, as president of the Grand Rapids Chair Company, who is the owner of said goods and chattels described in within writ." It is agreed that by the word "who" a service is shown on Comstock personally, not on the company. We think the return sufficient. It shows that it was served upon him "as president," etc., and the word "who" can well be treated, as it was no doubt intended, as relating back to the chair company, and not to Comstock. It is not best to void the sheriff's return, and thereby nullify the whole proceedings in 19 suits by hair-splitting.
The judgments in the lien cases are next attacked. It is claimed that they are illegal and void for the following reasons. First, because of the taxing in each case of an attorney fee of five dollars; second, there are no allegations in the affidavits for the writs as to the ownership of the logs; third, the docket of the justice shows that he proceeded to trial at the return-hour of the writs, without waiting one hour for the owner of the logs to appear; fourth, the sheriff was not authorized to serve the process outside of Newaygo county; fifth, the proceedings were brought for labor and services not mentioned in or contemplated by the statute.
In relation to the first objection, it must be held that the taxing of the attorney fee of five dollars in each of these cases was illegal. Such attorney fee is unauthorized, for the reason stated in the Wilder v. Railway Co., 38 N.W 289; Schut v. Same, Id. 291; Lafferty v. Same, Id. 660. It was imposed in the lien cases under the authority of Act No. 147 of Public Acts of 1887, p. 160, which is an act amending the Session Laws of 1883. Whether or not the attorney's fee given by this Act No. 147 would apply to lien proceedings is not material, as the act itself, under the decisions above cited, must be considered as unconstitutional and void. But this illegal taxation of costs does not...
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