De Morris v. Wilbur Lumber Co.

• Decision Date: 08 February 1898
• Parties: DE MORRIS v. WILBUR LUMBER CO.
• Court: Wisconsin Supreme Court

98 Wis. 465

74 N.W. 105

DE MORRIS

v.WILBUR LUMBER CO.

Supreme Court of Wisconsin.

Feb. 8, 1898.

Syllabus by the Judge.

1. In an action in the circuit court to enforce a statutory lien for work on logs, timber and lumber, an undertaking on attachment, under section 5 of chapter 139, Laws 1891, is not required, unless ordered by the circuit court or judge, on 10 days' notice of the application therefor to the person who sued out the writ of attachment.

2. A person holding a lienable claim under the laws of this state, for work done on logs, timber or lumber, may enforce collection of the entire claim out of any part of the property subject to such lien.

3. Where a person without notice, actual or constructive, of the existence of lienable claims on logs, timber or lumber, under the statutes of this state, buys such property in the regular course of trade, pays full value therefor, transports the same at considerable expense for freight charges from the place of manufacture, and thereby enhances its market value, he is not, by reason of the facts, entitled to protection as a bona fide purchaser or otherwise, against the lien claim, because sections 1 and 4 of the lien law of 1891 provide that the lien claim shall take precedence of all claims, liens or incumbrances created, or sales made of the property, either before or after the doing of the lienable work, and that no purchaser of the property, within the time for filing the lien claim, shall prejudice the rights of the claimant.

4. Actions to enforce liens for labor on logs and timber are actions at law.

5. Under the provisions of the lien law, to the effect that for work done between the 1st day of November and the 1st day of May following, or commenced on a day prior to the 1st day of November and continued without interruption to a day between the 1st day of November and the 1st day of May following, the lien petition shall be filed on or before the 1st day of June next thereafter; and for work commenced after the 1st day of May and terminated before the 1st day of November following, the lien petition shall be filed within 30 days after the doing of the last work; the filing of a lien petition on the 3d day of April for work done partly between the 1st day of May and the 1st day of November preceding, and part thereafter, the whole work not being continuous from first to last, is too late to preserve the lien for work done prior to such 1st day of November.

Appeal from circuit court, Waukesha county; James J. Dick, Judge.

Action by Andrew De Morris against the Wilbur Lumber Company and others. Judgment for plaintiff. Defendant lumber company appeals. Reversed.

Action to enforce lien claims for labor performed in manufacturing logs into lumber and shingles, and other products; it was commenced against S. M. Holmes, the employer, and a writ of attachment was duly issued, under which, without any undertaking having been given, as required in ordinary attachment proceedings for the collection of debts, a quantity of shingles which had been sold to the Wilbur Lumber Company and paid for by such company, without any notice, actual or constructive, of any lien claims thereon, was seized by the sheriff and held to satisfy plaintiff's claim. Such proceedings were thereafter duly had in the action that the lumber company was made a defendant under the statute, and answered, taking issue on the allegations entitling plaintiff to a lien judgment upon the property attached. The defendant lumber company also moved the court to vacate the judgment because no undertaking was given. The motion was denied and the issues raised by the answer were tried by the court without objection, resulting in findings of fact to the effect that:

(1) At Ogema, in Price county, Wis., between January 7, 1896, and March 30, 1896, under contract with the defendant Holmes, plaintiff performed 70 days' work as a teamster, and cook, and his wife the same number of days' work as a cook, in converting logs and timber into shingles and other manufactured products, at the agreed price of $1.54 per day, and the amount due and unpaid therefor is $63.65.

(2) At the same place, between February 5, 1895, and March 27, 1896, Joe Breo performed 171 1/2 days' work for the defendant Holmes at her request, in manufacturing logs and timber into shingles and other products, at the agreed price of $2 per day, and the amount due and unpaid for such work is $295.26.

(3) At the same place and in the same manufacturing business, between September 23, 1895, and April 26, 1896, Charles Ek performed 106 3/4 days' labor for the defendant Holmes at her request, and at the agreed price of $16 per month for 41 1/4 days, and $18 per month for the balance of the time, and the amount due and unpaid for such work is $19.30.

(4) At the same place and in the same manufacturing business, between October 27, 1895, and March 12, 1896, John Hokenson performed seven days' work and packed 1,691 1/2 thousand shingles for the defendant Holmes at her request, for which, at the agreed price, there is due and unpaid $61.87.

(5) The last work in each of the cases mentioned was as follows: Plaintiff, March 30, 1896; John Breo and Charles Ek, March 27, 1896; John Hokenson, March 12, 1896. Breo, Ek and Hokenson duly assigned their claims to the plaintiff for collection, and thereafter, on the 3d day of April, 1896, plaintiff filed, in the office of the clerk of the circuit court for Waukesha county, Wis., a claim for a lien upon the shingles which were thereafter attached in this action for the amount due on the several labor claims mentioned, which petition was verified and contained a statement of facts as required by law, and that plaintiff claimed a lien upon the property described therein under the laws of this state on the subject.

(6) In the manufacturing operations at the mill, the logs, after being delivered on the mill floor, were converted into various products as seemed best by the workmen. The shingles were divided into three grades, part marked “B. M. Holmes, Ogema, Wis.,” part “E. R. Graham, Ogema, Wis.,” and part “Extra No. 1.”

(7) The defendant lumber company, by contract made July 1, 1895, purchased all of the two grades first mentioned, that might be manufactured during the season of 1895 and 1896, to be paid for as shipped. All such shingles were, prior to April 1, 1896, shipped to the company at Waukesha, Wis. Neither plaintiff nor his assignors knew of such contract of purchase, but did know that the shingles were shipped out of the mill yard about as manufactured. All the manufactured product left at the mill was attached on lien claims prior to the filing of plaintiff's petition.

(8) The shingles shipped to the lumber company were piled in their yard at Waukesha, and there levied upon under the writ of attachment in this action, the value thereof being $560.12, which value included freight charges paid by the company, to the amount of $147.29. Such freight charges were paid without any notice on the part of the company, actual or constructive, of any lienable claims upon the property.

(9) Each of the persons mentioned, who performed services in manufacturing the shingles, received pay from the defendant Holmes to an amount in excess of such person's labor upon the shingles involved in this action.

On such findings of fact the court concluded:

1. The amount due upon the several labor claims mentioned in the complaint is $440.08, with interest thereon from April 1, 1896, for which sum, with the costs and disbursements of this action, to be taxed according to law, plaintiff is entitled to a lien upon the shingles described in the complaint and attached in the action, situated in the yard of the defendant lumber company at Waukesha, Wis.

2. Plaintiff is entitled to have the said shingles sold to satisfy the amount due and the costs, as aforesaid, unless the defendant lumber company shall, within 30 days after notice of the entry of the judgment, pay into court for the benefit of the plaintiff the sum of $560.12, being the value of the shingles. For any deficiency in the satisfaction of the plaintiff's claim and costs, after applying thereon the proceeds of the shingles, a judgment is to be rendered against the defendant Holmes.

Judgment was thereafter entered in accordance with the findings, and with provisions in regard to its enforcement, and the entry of a judgment for a deficiency; it provided substantially the same as in case of a judgment in an action for the enforcement of a mechanic's or material man's lien under the statutes on that subject. The defendant lumber company appealed from the judgment.

Ryan & Merton, for appellant.

George H. Singleton and Cate, Sanborn, Lamoreux & Park, for respondent.

MARSHALL, J. (after stating the facts).

Section 5, of chapter 139, Laws of 1891, being that part of the lien law under which this action was brought, affecting the remedy by attachment, is section 3333, Rev....