Lambert v. NIcklass et al.
| Decision Date | 07 December 1898 |
| Citation | 45 W.Va. 527 |
| Court | West Virginia Supreme Court |
| Parties | Lambert v. NIcklass et al. |
One who keeps a horse or other live stock for compensation has alien thereon for such compensation by Code 1891, c. 100, s. 15. (p. 528).
An innkeeper or keeper of live stock who has a lien on the property does not lose the lien by levying an attachment upon the property. (p. 528).
Appeal from Circuit Court, Berkeley County.
Suit by Walter J. Lambert against B. Nicklass and others. Decree for defendants, and. plaintiff appeals.
Reversed.
W. H. Travers and Wisner & Woods, for appellant.
Flick, Westenhaver and Baker, for appellees.
Brannon, President:
Lambert kept a horse and buggy for Brown, claiming a lien for the keeping, refusing to let Brown take them without payment. Brown agreed that they should stand good for their keeping. Brown became insolvent and assigned for the benefit of creditors, but did not include this property in his assignment. Lambert sued for keeping the property, levied an attachment on it, the officer leaving it in his possession. The attachment was quashed, but personal judgment was rendered for the debt. Afterwards, Nicklass Bros. & Co. levied an execution against Brown on the property, and Lambert procured an injunction against selling, and the court held that Lambert had no lien, dissolved the injunction, and gave the execution preference over Lambert's lien, and Lambert appealed.
Lambert claims a lien for keeping a horse and buggy at his stable belonging to Brown, under section 15, chapter 100, Code, that "persons keeping live stock for hire shall have the same rights and remedies for the recovery of their charges therefor as innkeepers have." It is questioned by counsel whether Lambert ever had any lien. Counsel say that agisters and liverymen have no lien at common law, as is true. 13 Am. & Eng. Enc. Law. (1st Ed. 943). They say that an innkeeper has a lien on the goods of his guest, as he has sole and exclusive possession, not concurrently with the owner; but that one who merely feeds and takes care of a horse has not sole possession, but one concurrent with the possession of the owner; that only exclusive possession gives a lien. Now, I see little difference as to possession. The transient guest sometimes takes his horse and uses him during his stay at the inn, as does one who merely keeps his horse at the stable. It is the keeping the guest and the keeping the horse that gives rise to the lien, not alone possession, that being only the means of enforcing pay. It is very plain to me that the statute intended to remedy the defect of the comon law, and give any one keeping live stock for compensation a lien for such compensation, a lien like that of the innkeeper. Of course, it does not mean one who keeps stock to be hired, as there the compensation goes to the other party for use of the stock; but it means to give a lien to any one who, for hire or compensation, keeps stock. Lambert clearly had a lien.
But it is said Lambert waived or forfeited his lien by bringing action for the same demand before a justice, and levying an attachment upon the property. First, it is argued that judgment in this action merged and destroyed the lien. Judgment does merge the cause of action, so that it cannot be sued on again; but I understand that in law the debt is one thing and its lien on given property another thing, and that judgment does not destroy the lien. The creditor may enforce both, and his election of one does no exclude the other as a remedy. "Though the debt is merged in the judgment, its nature is not destroyed or affected; and if the debt was one for which a lien was given at common law or by statute, the lien continues after judgment." 1 Jones, Liens, s. 1032a.
But it is claimed with more confidence by counsel for appellees that the lien given by this statute is like that given an innkeeper by common law, and that, as loss of possession destroys the innkeeper's lien, so the levy of the attachment took away from Lambert the possession, and gave the officer possession, and thus lost Lambert's lien. There is quoted to us the passage from Jones on Liens (section 1014), saying: Also Hermann's Law of Executors, (sec. 172), saying: And citations from 13 Am. & Eng. Enc. Law, 586, and Jones, Liens, s. 328, to the effect that a carrier's lien is lost by his attachingproperty. As to the clause from Jones, that "the attachment is an assertion that the property belongs to the defendant." I will say that there is no force in it, because by claiming a lien the plaintiff asserts that it belongs to the defendant as much as by attaching it. He asserts the same thing by both lien and attachment, and no estoppel can, therefore, be based upon any contradiction between the two. Very little authority is cited for the above-cited doctrine; the same is cited for all the propositions above given. Regarding it unreasonable, I have sought to trace its origin, and find it in an English decision in 1828 (Jacobs v. Latour, 5 Bing. 130), holding that where one entitled to a lien as stable keeper and trainer sued and sold and bought the horses under execution, he could claim, in trover against him by an assignee in bankruptcy, only under the execution, not under his lien, his lien being waived by the execution. Legg v. Willard, 17 Pick. 140, seems to hold that when one has a lien, and attaches for the same debt, his lien is gone; but it is a mere assertion, and no discussion of any authority. Wingard v. Banning, 39 Cal. 543, is cited for the proposition; but there the affidavit declared the creditor had no lien, which was an express renunciation of it. It seems only three out of five judges concurred in the...
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