Garland v. Hickey

43 N.W. 832, 75 Wis. 178, 1889 Wisc. LEXIS 26
Wisconsin Supreme Court·Decided December 3, 1889·Published·Cited by 8 cases

Opinion

Cole, C. J.

I. The objection that the petition for a lien upon 'the logs- was not sufficient is clearly untenable. It states, in substance, that Hicltey, who had the supplies, is justly indebted to' the firm of J. C. Garland & Son in the sum named, and that such indebtedness accrued for supplies furnished and used in and about the cutting, hauling, and driving of the logs described and marked as therein speci[181] fied; that the supplies were furnished and used in Lincoln county between the 12th day of December, 1887, and the 21st day of January, 1888; that the debt became due on the day last named; and that the sum of $232.49, with interest thereon, remains unpaid. The petition then claims a lien upon the logs and lumber mentioned for the sum due and unpaid to him. The petition is signed by F. S. Garland, who swears in the verification that he is one of the firm of J. C. Garland & Son, and makes the verification on behalf of himself and his copartner, J. C. Garland, and that he knows the contents of the petition to be true of his own knowledge. It is objected that the petition should be signed by both of the plaintiffs, or. by an attorney for them. A petition made by one member of a firm for and in behalf of such firm is sufficient. A partner is an agent of the firm, and has authority to act in its behalf in such matters. This proposition is too plain for argument. The statute requires the petition or claim for a lien to be made in writing, and to be signed by the claimant or his attorney, and verified by the claimant, or by some one in his behalf, in the same manner that pleadings in civil actions are verified, setting forth, etc. Sec. 3, ch. 469, Laws of 1885. We suppose pleadings in civil actions may be verified by one of the partners for the firm, and that it is not necessary for all the partners to verify them. “ It is clear that the petition might be made and filed by either of the partners in the name of the firm, in the absence of the other, and without his knowledge. Each partner is the agent of the firm for the transaction of all matters pertaining to its ordinary business and affairs.” White v. Dumpke,45 Wis. 454. In the petition the pronoun “ him ” is used for “ them,” but this is a mere clerical mistake, and could mislead no one. It is very obvious from the petition that the debt was a debt due the firm, and that a lien was claimed on behalf of the firm for the amount due [182] it. The mistake in using the word “him” for “them” did not vitiate the petition, and should be disregarded.

II. There can be no doubt that when the supplies were furnished in the winter of 1887-88, and when the action was commenced in the municipal court in April, 1888, the statutes gave a lien for such supplies in Lincoln county. Ch. 469, Laws of 1885, expressly gave such lien for supplies in the counties therein named. Stacy v. Bryant, 73 Wis. 14; Patten v. N. W. Lumber Co. 73 Wis. 233. True, Lincoln county is not one of the counties named; but by ch. 530, Laws of 1887, it is enacted that the provisions of ch. 469, Laws of 1885, shall apply to and be in force in Wood, Lincoln, and Oneida counties. In view of this legislation, how it can be seriously claimed that the provisions relating to a lien for supplies given bj^ the law of 1885 do not apply to and are not in force in Lincoln county, we fail to comprehend. The law of 1887 expressly declares such provisions shall apply to and be in force in' Lincoln county, and there is no doubt, ambiguity, or indefiniteness in the language of the law, and can be none, as to the intent of the legislature to make them so apply. It is said ch. 530, Laws of 1887, does not provide that the provisions relating to a lien for supplies in the counties named in ch. 469, Laws of 1885, shall be in force in Lincoln county. This is a most obvious mistake. Sec. 1 reads: “The provisions of chapter 469 of the laws of Wisconsin of 1885, and the several acts amendatory thereof, shall apply to and be in force in Wood, Lincoln, and Oneida counties.” What language could be more clear, definite, and precise than this? Whatever provisions relating to a lien for supplies were contained in ch. 469, Laws of 1885, were in force in Lincoln county, if language means anything. It is true the law of 1887 speaks of the “several acts amendatory” to the act of 1885, but, if there are no such amendatory acts, evidently [183] there is nothing to which those words can refer. But this does not impair or render doubtful the application of any of the provisions of the law of 1885 which might and did apply to Lincoln county as well as to the counties which were named in ch. 469. There is no difficulty whatever in applying the lien act to Lincoln county, and certainly there can be no rational doubt that the legislature intended it should apply. This method of enacting laws is sometimes resorted to b}*- the legislature, and it is as effectual as though the entire law were re-enacted verbatim. It is, in fact, a reenactment of the previously existing statute or provisions by a reference thereto, as was done in Land, L. & L. Co. v. Brown, 13 Wis. 294. As the intention of the legislature is entirely clear to give a lien for supplies furnished in Lincoln county, effect must be given to the statute upon the subject., “ It would be a palpable violation of judicial duty and propriety not to do so.” Ryan, C. J., in Attorney-General v. Eau Claire, 37 Wis. 438.

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Garland v. Hickey, 43 N.W. 832, 75 Wis. 178, 1889 Wisc. LEXIS 26 (Wis. 1889).

43 N.W. 832 (Garland v. Hickey) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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