Union Lumbering Co. v. Tronson

Cole, J. In Griffith v. Smith, 22 Wis., 646, and Battis v. Hamlin, id., 669, this court decided that an action of replevin could not be maintained against an officer to recover possession [129] of property which he had seized and held under a writ of attachment for the enforcement of a laborers lien upon such property. And the reason of this rule of law is there briefly stated to be, that, as the process commands the officer to seize and hold the identical property which is claimed to be subject to the lien, the officer is protected by the writ, and is not liable to an action of replevin. It was said that the case was brought precisely within the reason and principle of the early decisions of this court, which held that property taken in obedience to a writ of replevin could not be retaken from the possession of the officer by a second writ of replevin, but that the party claiming to own the property must enforce his rights in some other way. The court, therefore, peremptorily declined in those cases to reexamine the technical grounds upon which this doctrine was founded, the question having been so long decided in this state that the objection to any attempt to reconsider it, whatever might be the views of the members of the court, was regarded as insuperable. The rule, consequently, was not then deemed open for argument under our adjudications. Now, unless we are prepared to depart from the doctrine of those cases and overrule them, it is plain the plaintiff cannot maintain this action. For this suit is brought to recover possession of certain logs which the defendant seized by virtue of a writ of attachment issued to enforce a laborer’s lien. It therefore is precisely such a case as Griffith v. Smith, and Battis v. Hamlin, and must be ruled by them. It is proper, before dismissing this cause from our consideration, that a remark or two should be made upon the case of Munger v. Lenroot, 32 Wis., 542. That was also an action of replevin to recover the possession of logs which the defendant as sheriff had seized upon writs of attachment in certain lien suits, and which he then held upon executions subsequently issued on judgments obtained in those suits. In that case the action was brought by the party claiming to be the general owner of the logs, who had not employed the laborers, and who [130] bad no notice, and was not made a party to those suits. The great question in the case, and the one to which the attention of the court was almost entirely directed, was, whether the statute gave the lien where the laborer was not employed by the general owner of the logs on which the services were performed, but was employed by a contractor under such owner. The majority of the court sustained the right of the laborer to his lien, and affirmed the judgment, which was in favor of the defendant. Both opinions proceed upon the assumption that the action was maintainable; thus strangely overlooking the cases in 22 Wis., above referred to, where the contrary doctrine is directly established. But it is apparent that there is no real inconsistency between' these cases and the conclusion reached by the majority in Munger v. Lenroot. For, as observed, the judgment in that case was affirmed upon other grounds ; the decision not being placed, as it might have been, on the doctrine of the cases in 22 Wis. At the time the action of Munger v. Lenroot was commenced, the law giving a lien for labor and services upon logs and lumber in Douglas county, only required that the person or corporation liable for the payment of the debt should be made a party defendant, but contained no provision which made it necessary to likewise make the general owner of the logs a party. The statute for the enforcement of such liens was the same in Chippewa county when the present suit was instituted. A grave question is raised in this case, as there was in that, whether the legislature could give a lien upon logs and a remedy for its enforcement in a case where the owner was not a party and was not brought before the court in the lien proceeding. Such a statute, it was argued, was obnoxious to serious constitutional objections, because it attempted to subject the property of one person to a lien for, and charge it with the payment of, debts contracted by another, without affording the owner any adequate means of protection' against the claims thus created against his property, or giving, him his day in court. It was said that it -was contrary to the131 first principles of civil liberty and the fundamental maxims of all constitutional governments, to sustain the power of the legislature thus to provide that a person’s property might be taken for the payment of a debt the justness and fairness of which he had no opportunity to contest or disprove. For one, I should be very unwilling to hold that the owner whose property was thus affected by the lien proceeding, was wholly without remedy, or could be concluded as to the rights by a judgment inter alios. What that remedy may be, it is unnecessary to state, further than to say that by the settled doctrine of this court he cannot bring an action of replevin against the officer. Whatever was said by me in the majority opinion in Munger v. Lenroot, to the effect that such an action might be maintained by the owner of the property against the officer, was unnecessary to the decision in that case, and must be regarded as obiter. It is satisfactory to observe that the law giving a lien for labor and services upon logs in the counties in the northwestern part of the state has been changed, so as to require the owner of the logs, as well as the person or corporation liable for the payment of the debt, to be made parties to the action for enforcing the lien. Ch. 189, Laws of 1873, and ch. 161, Laws of 1874. The views we have expressed are fatal to this action. The officer took judgment for only the amount of his special interest in the property. The plaintiff has no ground to complain of this judgment. By the Court. — The judgment of the circuit court is affirmed.