Western Stone Co. v. Carver

Mb. Justice Freeman delivered the opinion of the court. Appellant recovered judgment against one William Car-den, upon which execution duly issued and was placed in the hands of the sheriff. The property of the debtor was sold under said execution and the sheriff holds the proceeds. The appellees herein had been in the employ of Car-den, and filed with the sheriff statements of the amounts claimed to be due them for labor under Chap. 3Sa, K. S., wherein it is provided : “ That hereafter, when the business of any person, corporation, company or firm shall be suspended by the action of creditors, or be put into the hands of a receiver or trustee, then in all such cases the debts owing to laborers or servants, which have accrued by reason of their labor or employment, shall be considered and treated as preferred claims, and such laborers or employes shall be preferred creditors and shall be first paid in full, and if there "be not sufficient to pay them in full, the same shall be paid from the proceeds of the sale of the property seized; provided, that any person interested may contest any such claim or claims or any part thereof by filing exceptions thereto, supported by affidavit, with the officer having the custody of such property, and thereupon the claimant shall be required to reduce his claim to judgment before some court having jurisdiction thereof before any part thereof shall be paid.” The Circuit Court found that Carden’s business was suspended by the sheriff’s levy and ordered payment of appellees out of the fund in the sheriff’s hands as preferred claimants, the remainder to be paid appellant to apply on its judgment. From such finding and judgment this appeal is taken. It is stated by appellant that the decision must depend upon the construction to be placed upon said act. The appellant’s judgment was obtained by confession, September 11.1899. One of the appellees, John Neil, had recovered judgment against Carden in June preceding. The claims of the others had not been reduced to judgment when filed with the sheriff, but upon exceptions thereto being filed by appellant, each of said appellees brought suit before a justice to reduce his claim to judgment as required by the aforesaid statute. It is contended by appellant that the business of William Carden, the judgment debtor, was not “suspended by the action of creditors ” nor “ put into the hands of a receiver or trustee,” as required, to make the statute operative. Affidavits were filed tending to show that the business of Car-den at the saw-mill, which, with appurtenances, was levied upon by the sheriff under appellant’s execution, had been closed or suspended since the December previous to the levy. But on the other hand there are affidavits filed in behalf of appellees tending to show that the mill in question was operated by Carden for the manufacture of Cedar blocks used in street paving, for which he had made bids, and that mills operated in the manner and for the purpose of this one, were not:run continuously, but as their product was required for use in filling contracts; that Carden had uncompleted contracts with the city, that the latter was in debt to him, and that his business had not been closed or suspended up to the time when his tools, office desks, chairs, etc., were seized under appellant’s execution. It is also made to appear that Carden had cut a quantity of block for the city in April, was seeking other contracts, and prior to said seizure by the sheriff operated the mill whenever he could get a contract. It appears to be true that Carden was financially embarrassed, but we think the evidence justified the Circuit Court in finding that the business whs not suspended prior to the levy by appellant. It is objected to the allowance of the claim of John Neil, that he had already obtained judgment for wages against Carden about three months prior to the judgment in favor of appellant; that instead of levying upon Carden’s property at the time, he sat quietly ’by until appellant had realized the money in controversy by superior diligence, and therefore he is not entitled under the statute. But Neil’s claim was no less a debt owing for labor because reduced to judgment before a justice prior to the suspension of Carden’s business by action of appellant, and it is, we think, properly entitled to preference under the provisions of the act referred to. It is urged further by appellant that the provision requiring the claimant to reduce his claim to judgment when exceptions have been filed thereto, before any part thereof shall be paid, “ means a suit in which the objecting creditor shall have a right to contest the claim and appeal from the judgment.” It appears that appellant’s counsel appeared before the justice where appellees had sued to obtain judgments against Carden, and sought to be allowed to be heard in opposition to appellees’ claims. The justice refused to allow said counsel representing appellant to intervene and be heard on the merits. It is insisted that appellant was entitled to be allowed to contest appellees’ claim against Carden. It is argued that appellant was the one most interested in preventing the allowance of any claim or the rendition of any judgment against Carden which would result in depriving it-of any of the money in the sheriff’s hands secured by its diligence. But it must be said that while the right of appellees to share in the fund held by the sheriff is fixed by the statute, no provision is made changing the parties to a suit prosecuted by a laborer to recover his wages. We know of - no principle or statute which would authorize a third party to interfere in a suit between two litigants, where the sole purpose of the suit is to determine whether one is indebted to the other and how much. Appellees were not heard, and had no right to be, in the suit by which appellant obtained its judgment against Carden. Said judgment was obtained by confession, but appellant would scarcely concede appellees’ right to step in and seek to set aside that judgment in which they had no direct interest. We know.of no reason why appellant’s right to interfere between Carden and appellees is greater than appellees’ right to interfere between Carden and appellant. It seems to be considered that appellant may have had a right to appear in the suits against Carden before the justice, and upon its own request be made a party defendant. We find no authority for this view in the statute, nor is it quite evident how the suit could be maintained against defendant, even with its consent to be joined as party defendant. It was not indebted to appellees, and the justice would have been obliged to dismiss as to appellant when the evidence made it clear that Carden alone was the debtor against whom appellees could recover. But whether appellant was properly refused a hearing before the justice is not now, strictly speaking, before us. This is not an appeal from the judgments there rendered. It is sufficient for the purposes of this case that the justice appears to have had jurisdiction of the subject-matter and of the parties, and as no appeal from his judgments was taken, they became final. The right to “ contest any such claim” is limited to the manner provided in the statute. Upon such contest “by filing exceptions” with the officer holding the property the claimant is- required to obtain judgment in the usual way, which otherwise he need not do. It is further contended that the claims of certain of the appellees included compensation for use of their teams as well as for their own labor. It is urged that such debts are not those covered by the statute as having accrued to the laborer by reason of his own labor or employment. Cases are cited by appellant’s counsel in which it has been held that under such a statute compensation for the use of a team can not be recovered, even though the laborer works with or drives his team himself. See Balch v. N. Y. & O. M. Ry. Co., 46 N. Y. 521; Atchison v. Troy & B. Ry. Co., 6 Abbott Prac. (N. S.) 329; McCrilles v. Wilson, 34 Me. 285; Baker v. Fessenden, 71 Me. 292. It is said, under authority of these and other cases, that having included compensation for use of their teams with claims for the amount due for personal services, said appellees have lost their entire liens, it being impossible for the court to separate the claims for wages for personal service from that allowed for teams. But at the same session at which Chap. 38a, above referred to, was enacted, there was also adopted an act which was approved and went into force at the same time. It is as follows: “ In all actions brought to recover wages due any laborer or servant, when it shall appear to the satisfaction of the court or jury that it was necessary in the performance of said labor that the laborer or servant use his horse or team, then said service shall be included in said wages, and become a part of the judgment for said wages, and from such judgment nothing shall he exempt.” This enactment is placed in the revised statutes as the last section (19) of Chap. 52, entitled “ Exemptions,” apparently because of the concluding clause, which we have italicized. But this clause of the section covers a subject not expressed in the title of the act, and is substantially a repetition of section 16 of said chapter 52, which covers the same point. The rest of the enactment proceeds, as its title states, to “ include in judgments for wages the services of the laborer’s horse or team,” and relates more nearly to the subject-matter of Chap. 38a, which became a law at the same time. We agree with appellees’ counsel that they are to be construed together, and that compensation for the service of his team was properly included in the judgments in favor of said appellees, entitled to priority of payment in accordance with the provisions of Chap. 38a. By the latter act the debts owing a laborer or servant, in other words, wages, are given priority, and provision is made for payment when reduced to judgment. By the additional act found at the end of Chap. 52, services of the laborer’s team is required to be “ included in said wages and become a part of the judgment for said wages.” Finding no error in the judgment of the Circuit Court it must be affirmed. Mr. Justice Horton dissenting.