Jesse A. Smith Auto Co. v. Kaestner

• Decision Date: 24 October 1916
• Citation: 159 N.W. 738,164 Wis. 205
• Parties: JESSE A. SMITH AUTO CO. v. KAESTNER.
• Court: Wisconsin Supreme Court

164 Wis. 205

159 N.W. 738

JESSE A. SMITH AUTO CO.

v.KAESTNER.

Supreme Court of Wisconsin.

Oct. 24, 1916.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Valsey, Judge.

Replevin by the Jesse A. Smith Auto Company against A. J. Kaestner. From a judgment for defendant, plaintiff appeals. Affirmed.

Action of replevin begun in the civil court to recover possession of an electric car. At the time the repairs in question were made plaintiff held a duly filed purchase money mortgage on the car on which there was due the sum of $50. The defendant Kaestner, in whose possession the car was at the time the sheriff seized it under the writ of replevin, had, at the request of the owner, Mary E. Avery, who by the terms of the mortgage was entitled to the use and possession of the car, made repairs on it of the reasonable value, with interest, of $162.10, no part of which had been paid. The civil court adjudged that the lien of Kaestner for repairs was superior to the mortgage of the plaintiff, and upon appeal to the circuit court its judgment was affirmed. The plaintiff appealed.Raymond J. Cannon, of Milwaukee (Bernard V. Brady, of Milwaukee, of counsel), for appellant.

Thomas F. Hayden, of Milwaukee, for respondent.

VINJE, J. (after stating the facts as above).

Is the mechanic's lien given by section 3343, Stats. 1915, superior to the lien of a duly filed prior mortgage on the chattel repaired? That is the sole question presented by the appeal. Section 3343 provides that:

“Every mechanic who shall make, alter or repair any article of personal property at the request of the owner or legal possessor of such property shall have a lien thereon for his just and reasonable charges therefor, and may retain possession of such property until such charges are paid.”

In states where only the common-law artisan's lien obtains, or where the statutory lien given is merely declaratory of the common-law lien, there is a conflict of decisions upon the question. Some states, at least as to a certain class of chattels, such as vehicles and machinery needing frequent repairs, hold that there is an implied consent on the part of the mortgagee when he leaves the chattel in the possession of the mortgagor for use that it shall be kept in repair, and that the lien for such repairs shall take precedence over his mortgage. The cases of Hammond v. Danielson, 126 Mass. 294 (hack for hire), Watts v. Sweeney, 127 Ind. 116, 26 N. E. 680, 22 Am. St. Rep. 615 (railroad engine), Drummond Carriage Co. v. Mills, 54 Neb. 417, 74 N. W. 966, 40 L. R. A. 761, 69 Am. St. Rep. 619 (physician's carriage), and Reeves & Co. v. Russell, 28 N. D. 265, 148 N. W. 654, L. R. A. 1915D, 1149 (threshing machine engine), hold the artisan's lien superior because of such implied consent. Other courts negative such implied consent and hold the mortgage lien superior. See Denison v. Shuler, 47 Mich. 598, 11 N. W. 402, 41 Am. Rep. 734 (engine), Small v. Robinson, 69 Me....