Reilly v. Stephenson

• Decision Date: 21 July 1886
• Citation: 29 N.W. 99,62 Mich. 509
• Court: Michigan Supreme Court
• Parties: REILLY v. STEPHENSON.

29 N.W. 99

62 Mich. 509

REILLY v. STEPHENSON.

Supreme Court of Michigan

July 21, 1886

Certiorari to justice of the peace, Delta county.

John Power, for plaintiff.

Ball &amp Hanscom, for defendant and appellant.

CHAMPLIN J.

Thomas Reilly worked 148 days as a foreman in defendant's lumber camp, at an agreed price of $60 a month. His work consisted in cutting and banking saw-logs, and the last work performed was on the twenty-third of March, 1886. On the twentieth of April, 1886, he filed a claim of lien upon between eight and nine hundred thousand feet of pine saw-logs, upon which his labor had been performed, under act No. 145 of the Public Laws of 1881. On the same day he made and filed with a justice of the peace an affidavit in the form provided by that act, and the justice issued an attachment in the form given in the act, upon which the sheriff seized the property described in the writ, and served the defendant with a certified copy, and also served Charles Eastman, the owner of the logs, with a copy.

Stephenson made no defense, but Eastman appeared specially on the return-day before the justice, when it was admitted by the plaintiff's attorney that Charles E Eastman was the owner of the timber, and has been, ever since the timber was cut from which the logs attached were made the sole and absolute owner of said logs. He then moved that the writ of attachment be quashed, and the proceedings dismissed, as against his property seized under the writ, for the following reasons: "(1) It is not alleged in the affidavit upon which the writ of attachment in said cause was issued, that the said defendant, Casper C. Stephenson, had any right or authority whatsoever to procure, or cause to be performed, any of the labor and services upon the logs mentioned in said affidavit, for which said plaintiff claims a lien thereon. (2) It is not alleged in said affidavit that the work claimed to have been done was done for the owner of the logs sought to be attached, or for the contractor with the owner, or subcontractor, nor for whom such work and labor was performed. (3) There is no allegation in said affidavit as to who is the owner of the logs upon which the work and labor is claimed to have been done, and upon which attachment is sought, either at the time when such labor is claimed to have been done, or at the present time. (4) The writ of attachment issued in this cause is void, because it directs the officer to serve, or cause to be served, a copy of the writ upon the owner of the property to be attached, his agent or attorney, if such owner, agent, or attorney be known to him, and residing in this state, without giving the name of such owner, thereby leaving it to the determination of the officer serving the writ as to who is the owner of the logs sought to be attached. (5) The writ of attachment issued in this cause is void, because it authorizes the officer to serve a copy of said writ upon the owner of said logs, his agent or attorney, on the return-day of said writ, if such owner, agent, or attorney be known to said officer, and residing in this state. (6) The writ is void because it authorizes service to be made upon the owner of the property sought to be attached any time on the return-day of the writ, although the suit may have been previously determined by verdict and judgment. (7) Act No. 145 of the Session Laws of the state of Michigan of 1881, in pursuance of which these proceedings are attempted and this suit brought, is unconstitutional and void. (8) The affidavit upon which the said writ of attachment issued in this case is insufficient, in that it does not allege that the indebtedness, or any part thereof, is due, or was due at the time of the making of said affidavit, for which a lien is claimed upon the property sought to be attached."

The motion was overruled, and the owner took no further proceedings in the case before the justice, who proceeded to trial, and rendered judgment against Stephenson for $300, and found that said amount was due for work and labor performed by the plaintiff in cutting, skidding, hauling, and banking between eight and nine hundred thousand feet of pine saw-logs, being the property mentioned in the plaintiff's declaration, and that the plaintiff has a lien upon said described property for the amount. There was no evidence in the case showing any contract relations between Eastman, the owner of the timber and logs, and Stephenson, the defendant in the suit, and none between such owner and the plaintiff. In this case the writ of attachment was issued the twentieth of April, and was made returnable on the twenty-eighth day of April, 1886, at 9 o'clock A.M., and was personally served on the defendant, Stephenson, on the twentieth and upon owner Eastman on the twenty-second day of April, 1886. All the proceedings appear to have been taken in accordance with the statute.

This act came before this court for consideration in the case of Shaw v. Bradley, (Mich.) 26 N.W. 331. We were asked then to determine the constitutionality of the act. I then said that I had no doubt but that it was competent for the legislature to provide for security by way of a lien in behalf of a laborer, and also to provide a remedy for the enforcement of such lien, by attachment, in cases where the possession of property upon which the labor is performed is not retained by the person performing such labor. It was further observed in that case that no difficulty could arise in that enforcement of the lien in the single case of a contract between the owner of the logs, or other property subject to lien, and the person performing the labor. Such was that case, and we held that the lien could be enforced.

The question presented by this record is whether the statute creates a lien in favor of the laborer, for a contractor, as against the owner of the logs, between whom and the laborer there is no privity of contract, and if so, whether the statute for enforcing such lien is valid. I think the statute contemplates that the lien shall attach in favor of the laborer as against the owner of the logs. It is analogous to that of seamen for their wages, concerning whom Chancellor KENT says: "They may disregard bottomry bonds, and pursue their lien for wages afterwards, even against a subsequent bona fide purchaser. It follows the ship and its proceeds into whose hands soever they may come by title or purchase from the owner. Their demand for wages takes precedence of bottomry bonds, and is preferred to all other demands, for the same reason that the last bottomry bond is preferred to those of a prior date. Their claim is a sacred lien, and, as long as...