Upham v. Caldwell

¶1This case was tried by the court without a jury, and findings of fact and law made. Plaintiff claims the right, of possession under proceedings taken to enforce a lien under the log-lien law. The defendant claims title and possession under certain execution sales.

¶2April 26, 1889, Mr. Brown filed notice of a lien for work and labor of himself and others performed on the logs from which the lumber replevied was manufactured. On the same, day he' commenced suit to enforce his lien in the circuit court of Ottawa county1, by attachment, *267against one Arthur W. Jordan, individually; and the officer, under that writ, attached the logs, which were situated in the mill yard and woods belonging to said Jordan. Some of the labor for which this lien was being-enforced was performed for said Jordan individually, and the remainder for Jordan as assignee of one Shoemaker. June 5, 1889, Brown settled with Jordan for the labor performed for him individually, and agreed to discharge the attachment suit- against the said Jordan on his individual claim. July 1, 1889, Brown filed his declaration in said cause against Jordan as assignee of said Shoemaker, filed an affidavit of non-appearance, entered defendant’s default, and on July 5 entered an order making the default absolute, and referring the case to the clerk to *268assess the damages. July 5, judgment was entered by the clerk. This judgment was absolutely void, because entered by the clerk without any authority from the court. An execution was issued upon this .void judgment, and the lumber sold, on the 13th day of July, 1889, to one Bus-kirk, who was interested with Brown, and wlio subsequently assigned to Brown. Meanwhile, the lumber, both before and after the levy and sale, remained in the mill yard. July 10, 1889, the lumber was sold on two executions against Shoemaker, and was bid in by.the defendant. Defendant took possession under this sale, and was removing the lumber, when Brown brought this suit. It was first tried March 19, 1890, when Brown discovered that he had no judgment upon which to base his execu*269tion and sale, and voluntarily submitted to a nonsuit. This judgment was subsequently set aside. Brown on the 14th day of April, 1890, filed another affidavit of default in his log-lien attachment suit, again entered Jordan’s default, which was made absolute, and on April 17, 1890, took judgment. No execution has been issued under this judgment.

¶3The court found that defendant was in possession under his execution sale. lie was therefore in possession under a claim of right and title. Plaintiff must establish a right of possession superior to that of defendant, in order to entitle him to recover. Plaintiff’s right of possession under the execution sale in his attachment suit cannot be maintained. No right of possession attaches under a void judgment and execution.

¶4*270Brown was not in actual possession. The attaching officer did not give him possession under the attachment proceedings. His right of possession depended entirely upon the validity of his execution sale. The property was situated in the mill yard belonging to a stranger, over which he had no control. The mere marking of the lumber, and leaving it there, did not give him actual possession. It gave him constructive possession, with ' the right to remove, but his right to actual possession and of removal depended upon the validity of, his judgment. A plaintiff in replevin must recover upon the strength of his own title or i’ight of possession. This plaintiff has shown neither, and judgment was therefore properly rendered for the defendant.

¶5At the time of the levy upon the executions under *271which defendant purchased, Brown had a valid lien upon the property, and had taken the proper steps to enforce it. Section 8342, How. Stat., provides that when either of the parties to an action of replevin, at the time of the commencement of the suit, shall have a lien upon, or special property or part ownership in, the goods and chattels described in the writ, the court shall render such judgment as shall be just between the parties. Had. Brown's first judgment .been valid, his title under the execution sale would have been complete. Under this replevin statute, we think the court should have rendered judgment in favor of the defendant for the value of the lumber, less the value of Brown's lien. The value of the - lumber was found by the court to-be $848.87, including interest. The value of the lien was $570.24, including interest. Judgment should therefore have been “rendered for the defendant for $278.63. Judgment will be rendered *272in this Court for that amount, with interest from the date of the judgment in the court below. The defendant will recover costs.