McPheters v. Lumbert , 41 Me. 469 ( 1856 )

May, J.

This action is brought to recover compensation for the personal services of the plaintiff in driving logs, and to enforce his lien under the provisions of the statutes “ giving to laborers on lumber a lien thereon.” Stat. of 1848, c. 72, as amended by stat. of 1851, c. 216, § 1.

The defendants of record make no defence; but the owners of the logs on which the lien is alleged to exist, upon notice given to them, under the statute of 1855, c. 144, come into Court, and, taking upon them the defence of said action, claim the right to try the existence and validity of such lien. It is admitted that the plaintiff is entitled to recover in this suit a certain amount; but the right to enforce the collection of the judgment by reason of any lien upon the logs driven by the plaintiff, and not belonging to the defendants, is denied.

The first question presented in this case is whether it is competent for the owners of the logs to try the question of lien in the suit. By the stat. of 1855, before cited, it is provided that the owner of the lumber “ may come into Court and defend such suit.” If the action can be defeated, the lien falls to the ground. The statute does not provide for the trying of any matter except what may be regarded as a defence to the suit; and all other modes of trying the question of lien, which the law provides, are left open to the parties interested therein. We cannot doubt that if it had been the intention of the Legislature to permit the trial of any side issue, having reference only to the manner in which the judgment to be recovered might be enforced, they would have used some appropriate language to express such intention. The argument of counsel, that to allow the owners of the lumber to try the question of lien in some manner, not a defence to the suit, would be a saving of time and expense in settling the lights of the parties, if valid, cannot authorize the Court to legislate upon the subject. We “can only administer the law as we find it. The language of the statute is too plain to admit of the construction contended for. The plaintiff is entitled to judgment for the amount admitted to be due, which is $47,54, with interest from the date of the ' writ.

Tenney, C. J., and Hathaway and Goodenow, J. J., concurred.

Appleton, J.

The only defence relied upon, is an assignment by the plaintiff of his lien claim to one Pierce. This neither releases nor discharges the lien. It in no way prejudices the log-owners nor injuriously affects their rights. The cause may still be prosecuted to final judgment in the name of the assignor. The assignment of the plaintiff constitutes no defence.

When and to what extent the log-owners may intervene for the defence of their rights against the lien claimant, it is not now necessary to determine.