Peacock v. Morgan

• Decision Date: 18 May 1910
• Citation: 128 S.W. 1191
• Parties: PEACOCK v. MORGAN et al.
• Court: Texas Court of Appeals

128 S.W. 1191

PEACOCK v. MORGAN et al.

Court of Civil Appeals of Texas.

May 18, 1910.

Appeal from Falls County Court; W. E. Hunnicutt, Judge.

Action by Lida Morgan against F. J. Murphy; Frank Peacock intervening. Judgment for plaintiff. Intervener appeals. Reversed and rendered in part, and in part affirmed.

E. W. Bounds, for appellant. D. Boyles and Spivey, Bartlett & Carter, for appellees.

KEY, C. J.

Lida Morgan brought this suit against F. J. Murphy for wages alleged to be due, and sought to foreclose a laborer's lien on certain furniture, etc., used by Murphy in running a restaurant. Frank Peacock, who was Murphy's landlord, intervened, and asserted a prior lien to secure rent owing by Murphy. Murphy did not resist either claim, and the trial court rendered judgment against him on both demands, but awarded to the plaintiff priority of lien.

The case is submitted in this court as an agreed case under article 1414 of the Revised Statutes of 1895. The agreement shows that Peacock was Murphy's landlord, and he has a prior lien, unless the plaintiff has brought her case within the purview and terms of Acts 1897, p. 218, providing liens for the benefit of clerks, accountants, bookkeepers, artisans, craftsmen, factory and mill operatives, servants, mechanics, quarrymen, common laborers, and farm hands. That act is codified in Sayles' Ann. Civ. St. 1897, as articles 3339a, 3339b, 3339c, 3339d, 3339e, and 3339f. Article 3339a declares that the employés designated shall have a first lien upon all products, machinery, tools, fixtures, appurtenances, goods, wares, merchandise, chattels or things of value that may be created, in whole or in part, by the labor of such employés, or necessarily connected with the performance of such labor or service, which may be owned by or in the possession of such employés' employer. It contains a proviso to the effect that the lien of the farm hand shall be subordinate to the landlord's lien. Article 3339b reads as follows: "Whenever any person, employer, firm, corporation, his, her or their agent or agents, receiver or receivers, trustee or trustees, shall fail or refuse to make payments as hereinafter prescribed in this chapter, the said clerk, accountant, bookkeeper, farm hand, artisan, craftsman, operative, servant, mechanic, quarryman or laborer who shall have performed service of any character shall make or have made duplicate accounts of such service, with amount due him or her for the same, and present or have presented to aforesaid employer, person, firm or corporation, his, her, or their agent or agents, receiver or receivers, trustee or trustees, one of the aforesaid duplicate accounts within thirty days after the said indebtedness shall have accrued. The other of the duplicate accounts shall within the time hereinbefore prescribed, be filed with the county clerk of the county in which said service was rendered, and shall be recorded by the county clerk in a book kept for that purpose. The party or parties presenting the aforesaid account shall make affidavit as to the correctness of the same. A compliance with the foregoing requirements in this article shall be necessary to fix and preserve the lien given under this chapter; and the liens of different persons shall take precedence in the order in which they are filed; provided that all persons claiming the benefit of this chapter shall have six months within which to bring suit to foreclose the aforesaid lien; and provided further, that a substantial compliance with the provisions of this article shall be deemed sufficient diligence to fix and secure the lien hereinbefore given; provided that any purchaser of such products from the owner thereof shall acquire a good...