Tewksbury v. Bronson , 48 Wis. 581 ( 1880 )

Lyojsi, J.

1. By granting the nonsuit, the learned circuit judge necessarily held that the assignment by the plaintiff of the claim for tolls destroyed the right to a lien therefor on the logs, and that such right was not restored by the reassignment of the claim to the plaintiff before the action was brought.

In Caldwell v. Lawrence, 10 Wis., 331, this court held that the right to a lien given by statute to mechanics and others is not assignable, but is a mere personal right, which CiSnnot be prosecuted by the assignee of the debt or demand for labor or materials in his own name. In that case the petition for the lien was filed by the person who furnished the materials before he assigned the claim to the plaintiff. In substance and effect this is a ruling that the assignment of a claim before action, by one who might enforce a specific lien therefor, destroys the right to such, lien and reduces the claim to a mere personal demand. The-fact is mentioned in the opinion that the legislature had previously taken the same view of the statute by providing for the enforcement of a lien in a specific case by an assignee. Laws of 1859, ch. 113. In 1862 the same provision was incorporated in the law giving a lien on logs and lumber for work and supplies in certain counties. Tay. Stats., 1772, § 45.

The plaintiff’s right to a lien for tolls depends upon section 4, ch. 154 of 1874, as amended by chapter 263 of 1876, which gives the lien and authorizes its enforcement “in the same manner as the lien of laborers on logs.” In respect to such lien he stands on the same footing as “ laborers on logs,” unless there is something in the act which gives him a better remedy. Counsel argue that the words “ the said Tewksbury, his heirs and assigns,” as employed in section 4, renders the right to a lien assignable. We think not. These words are employed several times in the act, and manifestly refer in each case to the franchise. Tewksbury may collect tolls on logs run by aid of the dams; or his assignee of the right to maintain the dams may do so; or his heir may do so, if Tewksbury die without having assigned the franchise. But we find nothing in the act which, by any authorized rule of construction, permits an assignment of the right to a lien. If the right to a lien was destroyed by the assignment of the claim, no argument is necessary to prove that the reassignment thereof to the plaintiff did ñot and could not revive it.

There are cases which hold the contrary doctrine, and maintain it with great force of reasoning; but the ease of Caldwell v. lawrenee, sustained as it is by legislative construction, has stood unchallenged too long to be now lightly overruled. If a different rule is desirable, it should be enacted by the legislature. In the absence of legislative action, we must follow that case, and hold the general rule to be that the assignment of a claim for which the assignor might have a specific lien, before action, destroys the right to a lien.

2. The proposed amendment did not go to the cause of action, but only to the remedy. In Lackner v. Turnbull, 7 Wis., 105, an amendment was sustained which added to a prayer for a money judgment a prayer that such judgment be made a specific lien on certain real estate. The principle of the proposed amendment in the present case is the same. The amendment does not change the action from an equitable to a legal one. It was held in Marsh v. Fraser, 27 Wis., 596, that these lien suits are actions at law on contracts, notwithstanding they hare some characteristics of suits in equity.

There seems no necessity here for circuity of action. No good reason is perceived why the rights of all parties may not be finally adjudicated in this action, and we thint the refusal of the circuit court to allow the proposed amendment was not a proper exercise of its discretion.

By the Court.- — -The judgment is reversed, with directions to the circuit court to allow the amendment and award a new trial.