Johnson v. Perry

53 Cal. 351

• Court: California Supreme Court
• Decided: July 1, 1879
• Docket: No. 6350
• Status: Published

Opinion

By the Court, Rhodes, J.:

It appears from the findings that there was due to the plaintiff, as the proprietor of a livery-stable, two hundred and ninety-one dollars and twenty-five cents, for the care, keeping, and feed of the horses, and for the safe-keeping of the other property mentioned in the complaint, under contract with Dunbar, the owner of all of sa,id property; that while he was in possession of, and keeping and taking care of the property, the defendant took the same from the possession of the plaintiff, and that the plaintiff notified the defendant of this lien upon the property, for the said indebtedness of Dunbar. The defendant justifies under an attachment, issued to him as a constable, in an action instituted by McCloud against Dunbar before a Justice of the Peace, and a judgment rendered by such Justice of the Peace in said action against Dunbar, and an execution issued upon the judgment.

If the plaintiff held a lien upon the property as the proprietor of a livery stable, the defendant was not justified in taking the property from his possession. (Treadwell v. Davis, 34 Cal. 601.) The Act of April 4th, 1870, (Statutes 1869-70, p. 723) gives to the “ proprietors of stables and ranches or farms ” a lien upon “ all live-stock pastured, kept, or fed by them, under contract with the owners thereof,” for the amount due for the care and feed of such live-stock; and authorizes them to recover and hold possession of such live-stock until the amount of such lien shall be paid. The Civil Code contains no provision expressly giving such lien to livery-stable keepers; and unless sec. 3051 of the Civil Code is to be construed as extending to such cases, the above mentioned Act of April 4th, 1870, remains in force, because not repealed by the Codes. That section seems to be limited to a lien for the compensation due for “ labor or shill employed for the protection, improvement, safe-keeping, or carriage ” of personal property lawfully in his possession, but does not extend to the expenses of “ feed or pasturage ” of animals. We are, therefore, of the opinion that the Act of April 4th, 1870, was not repealed by the Codes, and that the plaintiff held a lien upon the property in controversy, under the provisions of that Act.

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The Court failed to find the facts in respect to the proceedings and attachment under which the defendant justified the seizure of the property. It is proper that the Court should find upon all the issues in a cause, but if the same judgment would be rendered upon a finding upon all the issues, as is required upon the facts as found, the omission to find upon a part of the issues is not an' error, of which either party can complain.

Judgment and order affirmed.

Sec. 3051 of the Civil Code was amended in 1878, (Amendments 1877-8, p. 89) so as to give liens to proprietors of stables, and to others for the care and feeding of horses and live-stock.—Reporter.