Viles v. Green

• Decision Date: 22 October 1895
• Parties: VILES v. GREEN.
• Court: Wisconsin Supreme Court

91 Wis. 217

64 N.W. 856

VILES

v.GREEN.

Supreme Court of Wisconsin.

Oct. 22, 1895.

Appeal from circuit court, Douglas county; R. D. Marshall, Judge.

Action by P. A. Viles against Champ Green, as administrator. Plaintiff had judgment, and defendant appeals. Modified and affirmed.

This is an action to enforce a laborer's lien upon a quantity of logs, under section 3329 et seq., Sanb. & B. Ann. St. The complaint alleges that the plaintiff made a contract April 4, 1890, with one Spaulding, to drive a certain quantity of logs for a stated price, and that he began the work April 14th, and completed it June 7th, of the same year, and has not been paid therefor; that Spaulding died May 6, 1890, and that the defendant is the duly appointed and acting administrator of his estate; that on June 30, 1890, the plaintiff duly filed his claim for a lien on said logs as provided by law. Judgment is demanded against the defendant for $624.30, besides interest and costs. A general demurrer was interposed by the defendant, and overruled. No answer was served, and judgment was rendered for the plaintiff upon default, adjudging that the plaintiff recover of the defendant, as administrator, $424.71 and costs, and that the same is a lien upon the logs described in the complaint. From this judgment the defendant appealed.Champ Green, in pro. per.

Reed, Grace & Rock, for respondent.

WINSLOW, J. (after stating the facts).

The first contention made by appellant is that there can be no lien unless the claim for lien is filed during the lifetime of the debtor. Upon this contention, reliance is placed upon the case of Dobbs v. Enearl, 4 Wis. 451. Certainly that case holds, under a very similar statute, that there is no lien unless the petition is filed during the lifetime of the debtor. The conclusion seems to be based on the premise that “the lien is created by the filing of the petition.” Although this case has not been directly overruled, it has been entirely discredited by the discussions in the cases of Hall v. Hinckly, 32 Wis. 362, and Smith v. Lumber Co., 68 Wis. 89, 31 N. W. 694. In the latter case it is distinctly held that the laborer has a statutory lien for his labor upon the logs from the time of its commencement, against all the world having actual or constructive notice of it, but not as against a bona fide purchaser without notice before the filing of his claim. Since the decision of this case, the question of the rights of bona fide purchasers has been the subject of legislation. Laws 1889, c. 454; Sanb. & B. Ann. St. § 3332. We do not feel hampered or controlled, therefore, by the language used in Dobbs v. Enearl. It seems to us quite clear that the lien is not “created by the filing of the petition,” but that it is given by the law and arises at once upon the doing of the work, but that, in order to be effective, it must be kept alive by the...