Viles v. Green

WiNslow, J. 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 Hobbs v. Enearl, 4 Wis. 451. Certainly that case holds, under a very similar statute, that there is no lien unless the petition is filed daring 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. Hinckley, 32 Wis. 362, and Smith v. Shell Lake L. Co. 68 Wis. 89. 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 of 1889, ch. 454; S. & B. Ann. Stats, sec. 3332. We do not feel hampered or controlled, therefore, by the language used in Hobbs 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 filing of a written claim within a certain time. This is the natural conclusion from the statutory provisions. The statute says, in substance (E. S. sec. 3329), that any person who shall perform any labor upon logs or timber 11 shall have a lien” upon the same. Sec. 3331 says that no debt or demand for such labor ‘£ shall remain ” such lien unless a written claim- be filed within a [220] certain time. The lien exists when the labor is performed,, but a claim must be filed to keep it good and enforce it. But it is further contended by the appellant that there ca,n be no judgment of lien in this action, because no such relief was demanded in the complaint. R. S. sec. 2886. This section provides that the relief granted to the plaintiff, if there be no answer, cannot exceed that demanded in the complaint. It is well established in this court that for some purposes a demurrer is to be regarded as an answer. Howell v. Howell, 15 Wis. 55; Steele v. Moss, 69 Wis. 496, and cases cited. We are inclined to so construe the word “answer ” as used in this section, especially as it appears that the judgment was rendered upon notice, and that the defendant was present when it was rendered and made no objection nor took any exception to the judgment. Morris v. Peck, 73 Wis. 482. There is, however, an insuperable objection to that part of the judgment which adjudges a recovery against the administrator personally of the damages and costs. Under our statute (R. S. sec. 3845), this action could only be commenced and prosecuted to enforce the lien, and not to recover a personal judgment against the administrator. This part of the judgment must therefore be reversed. By the Gourt.— That part of the judgment which provides for a personal recovery against the administrator is reversed, with costs, and in all other respects the judgment is affirmed. MaRshall, J., took no part. A motion for an order relieving the respondent from costs in this court was denied January 7, 1896.