Jacubeck v. Hewitt , 61 Wis. 96 ( 1884 )

Cole, C. J.

This action was commenced in a justice’s court against the defendant McCurdy to recover the sum of $191.49, for labor performed by plaintiff for said McCurdy in cutting and hauling a lot of pine saw-logs, and to enforce a lien upon the property. The logs were seized on the attachment, and McCurdy was personally served with process. Before the return of the attachment the defendant Hewitt filed with the justice an affidavit stating that he was the owner of the logs upon which a lien was claimed, and that he believed the claim for a lien was unjust and invalid* and asked that he be made a party to the action, as provided by ch. 273, Laws of 1882. On the return day the plaintiff filed his complaint, and the defendant McCurdy answered it by a general denial. The defendant Hewitt, before any proceedings were had on his part, made and filed with the justice an affidavit of prejudice, and moved that the cause be removed to the nearest justice qualified by law to try the same. The justice denied the motion. After two witnesses were sworn on the trial, the attorney of Hewitt filed an affidavit that the justice before whom the cause was pending was a material witness for Hewitt, without whose testimony Hewitt could not safely proceed to trial, and moved that the cause be removed to another justice. This motion was also denied, and Hewitt declined to answer or make any defense. Judgment was rendered by the justice against McCurdy for the amount claimed by plaintiff, and against Hewitt that said sum was a lien upon the logs attached. Hewitt took an appeal to the circuit court.

In the circuit court Hewitt filed an answer, in which he alleged that he was the owner in fee simple of the land upon which the timber was standing when cut and removed; and that McCurdy entered upon the land and removed the timber therefrom without his consent. The plaintiff noticed the cause for trial in the circuit court, but before the same was called for trial Hewitt moved to dismiss the action for want of jurisdiction in the circuit court, because the justice erred in refusing to remove the cause to some other justice on the affidavit of prejudice filed; and also because the justice refused to remove the case upon the ground that he was a material witness for the defendant Hewitt. The circuit court overruled both motions, and proceeded to try the case.

The first error relied on here for a reversal of the judgment is the refusal of the justice to remove the cause upon the filing of the affidavit of prejudice. It is said Hewitt was entitled to a removal on the filing of that affidavit, which had the effect in law of ousting the jurisdiction of the justice. This position we deem quite untenable. From the history of the case above given it will be noticed that Hewitt was not the only defendant before the court, though he alone demanded that the cause be removed on account of the prejudice of the justice. He claimed to be the owner of the logs, and was, of course, interested in the question whether the plaintiff was entitled to a lien upon them. This was the extent of his interest in the controversy. It may be assumed that he was entitled to all the rights of an ordinary defendant in an action where there are other defendants, and that his affidavit was in due form. But it will be borne in mind that McCurdy was the principal defendant, who, by his answer, contested both the justness of the plaintiff’s demand and his right to a lien. He did not join in the application for a removal, but appears to have been willing that the cause should be tried by the justice who issued the process. Were not his rights as important and sacred as the rights of Hewitt? He certainly had a more vital interest in the controversy than his co-defendant. It is said that the question as to whether the plaintiff was entitled to a lien on the property or not could be fully determined as between him and Hewitt. .So it could be in the action between the plaintiff and McCurdy. Not only could the question of lien be adjudicated between them, but the further question whether McCurdy was indebted to the plaintiff in any amount for which judgment should be rendered. Now, will the law tolerate the practice of allowing Hewitt to remove the cause for trial, so far as the claim for lien was concerned, by one justice, while another justice retains the cause to try both that claim and the question of McCurdy’s indebtedness? It seems-to us a bare statement of the proposition is enough to show its unsoundness. The law does not favor any such anomalous practice, which would only tend to multiply litigation and increase expense in the settlement of controversies. If McCurdy, who was contesting the right of plaintiff’s recovery to any amount, had united in the application for removal, it could not have been properly denied. But the justice retained the cause because McCurdy did not join in the affidavit, nor demand a removal of the same. The justice was clearly right in this view of the law. Wolcott v. Wolcott, 32 Wis. 63; Hupp v. Swineford, 40 Wis. 28; State ex rel. Guppel v. Milwaukee Chamber of Commerce, 47 Wis. 670; Levy v. Martin, 48 Wis. 198; Eldred v. Becker, 60 Wis. 48; Hellriegel v. Truman, 60 Wis. 253.

In Eldred v. Becker the court lays down substantially this rule on the subject: That there cannot be a removal in a civil action on the application of only a portion of the defendants (or plaintiffs, as the case may be), where other defendants actually interested in the controversy have appeared but decline to join in the application. But, as Mr. Justice LyoN observes in that case, this rule does not apply where there is a defendant who does not appear in the action, but makes default. The case of Hewitt v. Follett, 51 Wis. 264, is not in conflict with these decisions. There the real party in interest was Mrs. Follett, who applied for the removal. Her husband and the garnishee were mere formal parties defendant; besides, the husband had made default. The case clearly came within the exceptions to the rule which requires all co-defendants to join in an application for a removal.

What has been said upon this point applies with equal force to the application to remove the cause because the justice was a material witness. But there is an additional ground for denying that application, because it came too late, if there were no other objection to it. An issue had been joined in the action, and two witnesses had been sworn on- the part of the plaintiff, as appears from the return of the justice. Sec. 361-T, R. S., prescribes the time when an application for removal, on the ground that the justice is a material witness, must be made. A glance at that provision will show that this application was toó late.

The evidence in the case showed that the plaintiff, with several other men with their teams, worked for McCurdy -through the logging season/hauling and banking a lot of pine logs, marked as stated in the complaint. It is admitted that a large quantity of logs was thus hauled and banked, but there was no evidence showing that the identical logs which the plaintiff hauled were attached. It was conceded on the trial that it was practically impossible to identify the logs which the plaintiff, or any other teamster, did actually haul aud bank, as they were all mixed together. Now the learned counsel for Hewitt claimed in the court below, and he insists upon the same point here, that it was absolutely essential for the plaintiff, in order to have a lien, to make that proof. He says the plaintiff was bound to show that he performed labor upon the identical logs attached in the suit, otherwise he cannot have a lien upon the logs. This court has not been disposed to put any such strict construction upon the statute. On the contrary, in Winslow v. Urquhart, 39 Wis. 260, this court held that one who cooks food for loggers was entitled to a lien for his services. In that case it was said by Mr. Justice LyoN that the statute was enacted in the interests of labor, and that a sound public policy required that it be liberally construed. It is obvious that the construction contended for by the learned counsel would, in most cases, entirely defeat all the beneficent purposes of the statute. Therefore, there was no error in the charge of the court belowT, which was to the effect that the plaintiff, upon the evidence, was entitled to a lien upon any portion of the lot of logs which he, with other teamsters, had hauled and banked for McCurdy.

It is further insisted that the plaintiff was not entitled to a lien because of the interest of the heirs of the deceased Mayer in the land and the logs. The court was perfectly justified, under the circumstances, in directing the jury to wholly disregard all the evidence in regard to that matter. Those heirs are not before the court; whether their rights would be affected by this litigation it is not necessary to decide. Certainly, in view of his affidavit and answer, Hewitt is in no position to claim that the Mayer heirs are the true owners, and should be before the court. All of the evidence upon that point was entirely immaterial.

The last objection taken is to the form of the judgment. The judgment certainly contains nothing of which Hewitt can complain. The statute of 1882 provides that if, upon the trial in the appellate court, the plaintiff recover judgment of lien upon such property, such judgment may be entered against the appellant and his sureties. Sec. 3, ch. 273. That refers to an appeal taken, as this was, by the person claiming to be the owner of the logs.

It follows from this view that the judgment of the circuit court must be affirmed.

By the Court.— Judgment affirmed.