Graves v. . Dockery

BkogdeN, J. The only assignment of error contained in the record is the ruling made by the trial judge “that plaintiffs were not entitled to a lien on the property described in the complaint or in the lien.” Therefore, the question of law arising is whether prior to chapter 69, Public Laws 1929, a person cutting and hauling logs to a mill can thereafter acquire a lien upon the lumber by virtue of C. S., 2436. C. S., 2436, provides a lien upon lumber for “every person doing the work of cutting or sawing logs into lumber,” etc. This statute was construed in Glazener v. Lumber Co., 167 N. C., 676, 83 S. E., 696, and the companion case of Hogsed v. Lumber Co., 170 N. C., 529, 87 S. E., 337. In the Hogsed case the Court said: “But we do not think that under the description ‘doing the work of cutting or sawing logs into *319 lumber’ will fall those described as engaged on the train hauling logs, such as the engineer on the log train, the trimmerman, the dogger on carriage (unless this means on the saw carriage, in which case he would be engaged in cutting), fireman on the log train, conductor and brakeman on the same, and others engaged in bringing logs to the mill to be thereafter sawed into plank by those engaged in that service. The men engaged in working on the log train in any capacity, the night watchman, and all connected with the repairs to the machinery, or running the log train or bringing in the logs, cannot be said to come within the description, ‘engaged in the work of cutting or sawing logs into lumber,’ as defined by us in Glazener v. Lumber Co., 167 N. C., 676.” "While it was held in Thomas v. Merrill, 169 N. C., 623, 86 S. E., 593, that the plaintiff in that case had a lien under the statute, it is to be noted that the logs which were the subject of the controversy, were still in the possession of the plaintiff. Indeed, the dissenting-opinions in Glazener v. Lumber Co., supra, recognized that a strict construction had been put upon the statute by the Court, and Hoke, J., dissenting, said: “To my mind, it is not the correct nor permissible construction of this statute to restrict its operation to laborers who work at or with the saws.” It is, therefore, obvious, that the Court intended to confine the benefit of the lien to those who were directly or indirectly engaged in sawing, moving, and stacking the lumber or doing acts connected with the sawing operation. Recognizing the narrow construction put upon the statute, the General Assembly by Public Laws of 1929, chapter 69, included within the benefit of a lien those who were engaged in logging the mill. This legislative enactment constitutes strong proof of the, fact that those who were therefore engaged in logging, did not come within the purview of C. S., 2436. However, this case arose before the act of 1929, and must be governed by the law existing at the time. We are therefore constrained to hold that the judgment was correct. No error.