Allen v. Middleton

.Atkinson, Justice.

1. By the act of 1873 it- i's provided, “That laborers shall 'have a general lien upon the property of their employers, liable to levy and sale, for their labor, which is hereby declared to be superior to all other liens, except liens for faxes, the special lien of landlords on yearly crops, and such other liens as are hereinafter declared superior to them. Laborers shall also have a special lien on the products of' their labor, superior to all other liens, except liens for taxes, and special liens of landlords on yearly crops, to which they shall be inferior. Liens of laborers shall arise upon the .completion of their contract of labor, but shall not exist against bona fide purchasers without notice, until the same are reduced to execution, and levied by an officer.” See Code, §§1974, 1975, 1976.

Code, §1991(3) provides for the enforcement of liens on .personalty as follows: “The person prosecuting such lien, either for himself or as guardian, administrator, executor or trustee, must, by himself, agent or attorney, make affidavit before a judge of the superior court, or the ordinary of the county in which the personal property may be, or the defendant may reside, showing all the facts necessary to con.stitute a lien under this code, and the amount claimed to be .due. If the amount claimed is under one hundred dollars, the application may be made to a justice of the peace, who may take all the other steps hereinafter prescribed, as in other cases in his court. Upon such affidavit being filed, if' before a judge of the superior court, or the ordinary, with the clerk of the superior court of said county, it shall be the duty of the clerk to issue an execution instanter against the person owing the debt, and also against the property on which the lien is claimed, or which is subject to said lien, for the amount sworn to and the costs, which execution, when issued, shall be levied by any sheriff of this State, or bailiff, if the amount be less than one hundred dollars,” etc. In the same section, subdivision 4, it is provided that, “If the person defendant in such execution, or any creditor of such defendant, contests the amount or justice of the claim, or the existence of such lien, he may file his affidavit-.of the fact, setting forth the grounds of such denial, which affidavit shall form an issue to be returned to the court and tried as other cases.”

In tbe present oase neither the defendant Reuben Middleton, nor any creditor of his, filed a counter-affidavit- contesting the justice of the plaintiff’s claim, or the -existence of his lien. They are the only persons authorized by law to raise this issue. It therefore results that, under the 3d subdivision of the section of the code above quoted, an execution issued upon the foreclosure regular in all respects of a laborer’s lien is, as to a claimant of property levied on thereunder, final process; for it expressly provides that the clerk of the superior court, or justice of the peace if in his court, issue <m .exeewticnv instmter, etc. No counter-affidavit was filed as provided by law, and hence upon the trial of -a claim case arising upon the levy of such an execution, it is not necessary for the plaintiff to prove either the amount of his debt, or the existence of his lien.

2. The question as to whether or not claimant had notice of the existence of plaintiff’s lien at- the time he purchased the crop, was purely one of fact, and hence exclusively within the province of the jury. The court having properly instructed the jury, there being sufficient evidence to sustain the verdict and the trial judge being satisfied with it, this court will not interfere. Jiodgmeni affirmed.