#### Johnson and others, Respondents, vs. Iron Belt Mining Company and others, Appellants.

*November 8*

*November 25, 1890.*

*{1, %) Idem: Logs and timber: Judgment: Collateral attach.*(8) *Justices' courts: Entry of adjournment. {Jj) Execution sale: Void and valid judgments. (5) Levy on timber.*(6) Bona fide *purchaser: Notice of lien: Court and jury.*

1. Although the judgment for a lien upon logs and timber included not only the amount due for labor thereon but also the amount due for supplies furnished in a county to which the statute giving the lien for supplies did not apply, yet the judgment could not be attacked collaterally on that ground. Nor could it be attacked collaterally on the ground that the amount adjudged to be due for labor was excessive.

2. The hen of a laborer who has worked with several others upon logs which are mixed together is not limited to the identical logs upon which he so worked, but may be enforced against any portion of the lot of logs upon which he and the others worked.

3. An entry in a justice’s docket was as follows: “ Defendant appeared personally and asked for an adjournment of one week, until the 27th day of April, at 1 o’clock P. M., at this my office in the town of Ashland, Ashland county, Wis.” Nothing further was done until April 27. *Held,*that an adjournment could be fairly implied from the entry, and it was therefore sufficient under subd. 5, sec. 3374, R. S.

4. A sale under executions issued upon several judgments passes a good title if one of such judgments is valid, even though the others are void.

5. In making a levy upon certain hemlock mining timbers the officer did not remove them from where they were piled, but forbade the defendants to use or interfere with them, and thereafter until *160the sale was present nearly every day where the timbers were located, and twice stopped the defendants from taking any timber from the pile. *Held,*that the levy was sufficient.

6. The question being whether defendants were *bona fide*purchasers of certain timber without notice of the claims of the xslaintiffs for unpaid labor thereon, evidence that before paying for the timber the defendants were, told by a third person that the vendor had not paid the men who worked thereon, though the names of such men were not stated, is *held*sufficient to take the case to the jury.

APPEAL from the Circuit Court for *Ashland*County.

The following statement of the case was prepared by Mr. Justice Cassoday:

This is an action to recover the value of 270 sets of hemlock mining timber of which the plaintiffs claim to have been the owners under and by virtue of four several lien judgments in justice’s court, taken and entered April 2Y, 1889, against one Samuel Garrett, and each anql all commenced by attachments and seizure thereon, April 11,1889; one in favor of the plaintiff *louis Johnson*for $183.45 damages and $51.50 costs; another in favor of the plaintiff *Ohrist. Johnson*for $162.63 damages and costs; another in favor of the plaintiff *Ohris. Larsen*for $153.51 damages and costs; and another in favor of the plaintiff *Michael Maher*for $86.50 damages and costs,— together with the petitions for liens, executions, and sale to the plaintiffs, May 20,1889, in said cases respectively. The answer was a general denial. The defendants claim that the property was sold and delivered to them by said Garrett in the forepart of March, and prior to March 11, 1889, and that they paid for the same April 3, 1889. At the close of the trial the jury returned a verdict in favor of the plaintiffs and against the defendants for $1,215. From the judgment entered thereon the defendants appeal.

For the appellants there was a brief by *MeNeel & Bush*nell, and oral argument by *T. II. Bushnell.*

For the respondents there was a brief by *Sleight <& Foster,*and oral argument by *Richard Sleight.*

*161Oassoday, J.

It appears from tbe face of the judgment in favor of *Louis Johnson*that $59.05 was for labor and services rendered, and $124.40 for supplies furnished in Ashland county. It is conceded that the statute authorizing liens for supplies furnished did not, at the time, extend to Ashland county. Sec. 1, ch. 469, Laws of 1885. *Patten v. Northwestern L. Co.*73 Wis. 233. This being so, that judgment was manifestly irregular and might have been reduced on appeal; but that did not prevent the justice from taking jurisdiction and rendering a judgment for a lien for the amount of the labor and services. The court having jurisdiction as to-a part of the claim, the judgment cannot be regarded as a nullity, nor attacked collaterally. 12 Am. & Eng. Ency. of Law, 147q, note 8, and cases there cited; *Blair v. Wolf,*12 Iowa, 246; *Allen v. Ray,*96 Mo. 542; *Rogers v. Stokes,*87 Tenn. 294; *Ghaffee v. Hooper,*54 Vt. 513. Eor the same reason the defendants cannot attack the judgment collaterally for the purpose of showing that the amount adjudged therein for labor and services was excessive. The same is true with respect to each of the other judgments.

As to some of the judgments, it is claimed that the labor and services were not upon the identical sets attached; but this court has held, in effect, that the statutes are to be liberally construed in the interests of the laborer, and that the lien of a laborer who has worked with several others upon logs, etc., which are mixed together, is not limited to the identical logs, etc., upon which he so worked, but may be enforced against any portion of the lot of logs, etc., upon which he and the others worked. *Jacubeck, v. Hewitt,*61 Wis. 96. Besides, it appears in the record of each of said judgments that they are each, at least in part, for labor and services rendered prior to the delivery of the sets to the defendant.

It is claimed that the *La/rsen*judgment was void by rea-*162sou of tbe entry of tbe adjournment by tbe justice in these words: “April 20, 1889, ... 1 o’clock p. m. Case called. Plaintiff appeared and filed written complaint duly verified. Defendant appeared personally and asked for an adjournment of *one week, until the %7th day of April, 1889,*at 1 o’clock p. m., at tbis my office in tbe town of Asbland) Ashland county, Wis.” Tbe justice was required by statute, among other things, to enter in that case in bis docket tbe appearance of tbe respective parties and every adjournment therein, and stating at whose request and to what time and place. Subd. 8, 5, sec. 3571, R. S. Tbe only defect in tbe entry complained of is tbe failure to expressly enter that tbe cause was in fact adjourned. But it appears that tbe defendant asked for an adjournment of one week, and be must have understood that bis request was granted, as nothing further appears to have been done at tbe time except to make tbe balance of tbe entry indicating that nothing more would be done in tbe case “ until ” tbe expiration of tbe “ one week.” In *Stromberg v. Esterly,*62 Wis. 632, there was a failure to enter tbe year, but it was held to be im-pbed. We are incbned to think that such one week’s adjournment can be fairly imphed in tbe case at bar from tbe entry made. *Storm v. Adams,*56 Wis. 137. But tbe trial court held that, even if some of tbe judgments were absolutely void, still, since there was at least one valid judgment upon its face, tbe sale under that was sufficient to give tbe plaintiffs a perfect title to tbe property in question. Such is undoubtedly tbe law in tbis state. *Herrick v. Graves,*16 Wis. 157; *Hand v. Grant,*10 Smedes & M. 511; *Brace v. Shaw,*16 B. Mon. 13; *Richards v. Allen,*3 E. D. Smith, 106; Freem. Ex’ns, § 325.

Tbe officer levied upon and seized 270 sets. A portion of them were divided off. They were corded up in tiers. Tbe officer levied on two piles,— one of which bad 600 pieces in it. He did not separate them, as they were sufficiently sep*163arated. He forbade tbe defendants from using or interfering with tbem; and tbe general manager of tbe defendants at tbe same time stated to tbe officer that be proposed to use tbem. Tbe officer was present at tbe place where the sets were located nearly every day from tbe time of tbe levy to tbe sale, and twice stopped tbe defendants from taking any timber from tbe pile. Tbe sets so levied upon, after being properly advertised, were sold to tbe plaintiffs. Tbe levy appears to have been sufficient. *New Richmond L. Co. v.*Rogers, 68 Wis. 608.

There appears to have been sufficient evidence to take tbe case to tbe jury on tbe question whether tbe defendants were *bona fide*purchasers for value without notice, within tbe rule stated in *Smith v. Shell Lake L. Co.*68 Wis. 89. Tbe liens were not filed nor tbe property attached until April 11, 1889. That testimony is to tbe effect that on tbe morning of April 3, 1889, and before tbe defendants bad paid Garrett for tbe sets, tbe defendants were told by one Adams that be bad a claim on tbe logs for supplies furnished during tbe winter; that Garrett was owing him quite a bill; that Garrett bad not paid tbe men nor him; that tbe men and himself bad all worked together on tbe timber; that be did not not state tbe names of tbe men, but spoke of those then working and those who bad at other times during tbe winter worked for Garrett on tbe timber; that some of tbem bad quit; that Garrett bad given to some of tbe others orders on him (Adams) for their pay. Upon this testimony and tbe rules of law as stated by Mr. Justice OetoN in tbe case last cited, we think tbe court was justified in charging tbe jury to tbe effect that tbe plaintiffs could only recover upon showing that, before tbe defendants bad paid out their money for this timber, they bad either actual or constructive notice that these plaintiffs or some of them bad not been paid for their labor on tbe timber, since tbe petitions for such bens bad not been filed at tbe time of such payment. *164Constructive notice, as thus used, manifestly meant such as would put the defendants on inquiry, as distinguished from actual notice. It does not refer to such constructive notice as would be given by filing the petition. It was used in a similar way in the case last cited. The other exceptions to the charge have virtually been disposed of in the foregoing opinion.

*By the*Cowrt.— The judgment of the circuit court is affirmed.