Mott v. Mott

• Court: Maine Supreme Court
• Writing for the Court: EMERY, C. J.
• Citation: Mott v. Mott, 107 Me. 481, 78 A. 900 (Me. 1911)
• Decision Date: 06 February 1911
• Parties: MOTT v. MOTT.

78 A. 900

107 Me. 481

MOTT

v. MOTT.

Supreme Judicial Court of Maine.

Feb. 6, 1911.

Syllabus by the Court.

Exceptions from Supreme Judicial Court, Penobscot County.

Action by Ellen E. Mott against Charles W. Mott and to enforce a lien on certain logs.

Action of assumpsit to recover for services "at cooking for said defendant and persons employed by him and engaged at cutting and hauling" certain logs and lumber. The plaintiff claimed a lien on the logs and lumber, the same were attached on the writ, notice thereof was given to the log owners and they duly appeared in answer thereto.

When the action came on for trial, the plaintiff discontinued as to the defendant Mott and proposed to proceed only against the logs and lumber attached. Thereupon it appearing that the plaintiff and the defendant Mott, at the time the services sued for were rendered, were husband and wife, and were such at the time of the hearing, the presiding justice ordered a nonsuit, and the plaintiff excepted. Overruled.

Argued before EMERY, C. J., and WHITE-HOUSE, SAVAGE, SPEAR, KING, and BIRD, JJ.

Clarence Scott and G. Willard Johnson, for plaintiff.

Charles W. Mott, pro se. F. W. Knowlton, for log owners.

EMERY, C. J. The plaintiff brought against her husband an action of assumpsit upon account annexed. In the declaration she alleged that she "at the special instance and request of the said defendant labored for him, the said defendant, at cooking for the said defendant and persons employed by him and engaged at cutting and hauling" certain specified logs and lumber. The logs and lumber were attached upon the writ, and notice thereof given the owner of the logs. The owner appeared in answer thereto.

At the time set for trial the plaintiff discontinued as to the personal defendant, who then and at the time of rendering the services sued for was her husband, and she proposed to proceed only against the logs and lumber attached. The presiding justice ruled, in effect, that upon the allegations in her declaration and the admitted fact of coverture the plaintiff would not be entitled to judgment against the logs and lumber, and ordered a nonsuit. The plaintiff excepted.

The plaintiff relies upon the comprehensiveness of the language of the lien statute (Rev. St. c. 93, § 46), which is as follows:

"Sec. 46. Whoever labors at cutting, hauling, rafting or driving logs or lumber, or at cooking for persons engaged in such labor, * * * has a lien on the logs and lumber for the amount due for his personal services. * * * Such liens * * * may be enforced by attachment."

"Whoever" is, as claimed by the plaintiff, a very comprehensive term, but it has been held that as used in the statute it does not include a contractor, though he labors personally at the cutting, or hauling, etc. Littlefield v. Morrill, 97 Me. 505.¹ It is evident, also, that it cannot reasonably be held to include trespassers, or persons employed by trespassers, or persons cooking for such laborers. We think it evident also, from the whole statute providing for such liens and their enforcement, that the lien is only annexed to such labor as creates an enforceable claim against some personal or corporate defendant "for the amount due for his (the laborer's) personal services." There is no provision for the enforcement of the lien claim by simple process in rem. The only provision is by suit against the employer of the laborer, upon the writ in which suit the logs or lumber may be attached. Rev. St c. 93, §§ 61 to 64, inclusive. There is no provision...