W. Allis Indus. Loan Co. v. Stark

• Decision Date: 04 December 1928
• Citation: 222 N.W. 310,197 Wis. 363
• Parties: WEST ALLIS INDUSTRIAL LOAN CO. v. STARK.
• Court: Wisconsin Supreme Court

197 Wis. 363

222 N.W. 310

WEST ALLIS INDUSTRIAL LOAN CO.

v.STARK.

Supreme Court of Wisconsin.

Dec. 4, 1928.

Appeal from a judgment of the Circuit Court for Milwaukee County; John J. Gregory, Circuit Judge. Affirmed.

Replevin by the West Allis Industrial Loan Company against Matt Stark, begun June 21, 1927, to recover possession of an automobile upon which the defendant claimed a garage keeper's lien. From a judgment entered May 16, 1928, awarding possession of the automobile to the plaintiff, the defendant appealed.

John Hutter gave the West Allis Industrial Loan Company a chattel mortgage upon his automobile which was duly recorded as required by law. Thereafter this automobile was damaged in a collision with a street car. At the request of Hutter, the defendant Stark towed the wrecked automobile to his garage, stored it for some time, and repaired it, replacing several damaged parts with new parts. He retained possession of the automobile, claiming a lien thereon for towing, repairing, and storing the same. The bill for repairs exceeded $75. The plaintiff tendered $75 to the defendant and demanded possession of the automobile which was refused. Plaintiff then began replevin.Brennan, Lucas & McDonough, of Milwaukee, for appellant.

Francis W. Rausch, of West Allis, for respondent.

STEVENS, J.

1. Prior to the passage of chapter 266, Laws of 1917, defendant's lien for his entire bill for the repairs of the automobile would have been superior to plaintiff's claim under its chattel mortgage. Smith Auto Co. v. Kaestner, 164 Wis. 205, 207, 159 N. W. 738.

By amending section 289.41 of the Statutes in 1917 so as to provide that a mechanic's lien shall have priority only to the extent of $75, the Legislature has so defined defendant's right to a lien for repairs, whether given by the common law or by statute, that he cannot have priority over plaintiff's claim under its chattel mortgage for any sum in excess of $75.

[1]Section 289.47 of the Statutes gives the defendant no lien for the repairs which defendant made on the automobile, because the repair parts ceased to be “detached” accessories, fittings, or parts after they had been attached to the automobile. The lien given by this statute is limited to the “detached accessory, fitting or part” on which work is done, and does not extend to lien to the whole automobile.

[2] 2. There is no statute giving a lien for towing the damaged automobile to the garage for the purpose of repairing the same. Towing service is not a part of the repairs. It adds nothing to the value of the automobile. The common-law lien for repairs is based upon the fact that the repairs enhanced the value of the damaged automobile. A mechanic who makes repairs upon a damaged automobile is not entitled to a lien “for ‘going after and bringing in the car,’ so that he might repair it.” Orr v. Jackson Jitney Car Co., 115 Miss. 140, 149, 70 So. 945, 946, 947;Crosby v. Hill, 121 Me. 432, 117 A. 585, 586.

[3] 3. In all cases where a garage keeper is not a warehouseman, the common law gives him no lien for storage. 17 R. C. L. 603. A garage keeper who retains possession of a repaired automobile until his bi...