4. SAME DISCLOSURE LIENS-EXEMPTION. Where a garnishee disclosed that indebtedness as claimed by plaintiff existed between the garnishee and principal defendant, and claimed that liens for labor performed by several claimants on certain logs had been obtained, and notice thereof served on the garnishee, and where he did not pay the money into court, but defended the case, and it appeared that the alleged liens were invalid by reason of defective proceedings to enforce them and that the principal defendant, being an independent contractor hiring labor to do the work, was not entitled to any exemption, a judgment for plaintiff was sustained by the proofs.

Error to Kent; Brown, J. Submitted October 18, 1912. (Docket No. 149.) Decided December 17, 1912.

Garnishment by Bruce N. Keister against Frank Donovan. Judgment for plaintiff. Defendant brings error. Affirmed.

E. J. Doyle, for appellant.
E. A. Maher, for appellee.

STEERE, J. In this case defendant Donovan seeks to defeat a judgment obtained against him as garnishee defendant in a suit instituted by plaintiff against Samuel W. Matice, principal defendant, on the ground that the debt owed by said Donovan to said Matice, which it was sought to reach by garnishment, was a labor debt upon which claims of lien for labor had been filed. Plaintiff began a suit on April 6, 1911, in justice's court, before T. H. Burch, a justice of the peace of Kent county, in an action of assumpsit upon a promissory note which he held against defendant Matice. On the same date, in the same court, in relation to the same matter, plaintiff also commenced an auxiliary garnishment proceeding against Donovan, as a debtor of said Matice. A summons against said Matice as principal defendant, and another summons against said Donovan as garnishee defendant, were issued at the same time, both returnable on April 18, 1911, and

both were personally served on April 7, 1911. On the return day, April 18, 1911, the case was called; all parties being present. Plaintiff orally declared on a promissory note executed by said Matice. The garnishee defendant, Donovan, then made and filed the following disclosure in writing, under oath:

"That at the time the garnishee was served on him there was $184.60 due on the contract. Liens to the amount of $161.34 for labor have been filed and served, so that there is $23.24 due above the labor claims due. S. W. Matice, the principal defendant, is a householder, and he worked personally on the job at manual labor all the time the lumber was being cut."

Afterwards, and on the 23d day of May, 1911, to which date the case was adjourned, said Donovan filed an amended disclosure under oath, which is as follows:

66 That there is $184.60 due on contract, and that labor liens have been filed for the whole amount thereof, and notice of the same served upon him forbidding him to pay any except those holding such liens. Such notice informs him that said liens have been filed with the county clerk." The following "examination of garnishee defendant," under oath, was also filed on the same date:

66

Q. Donovan, garnishee defendant?

"A. Yes. Am not concerned with the original parties. I was owing Matice $184.60 when the garnishee was served on me. The principal defendant is Matice. This was for sawing lumber and ties. This was on a verbal contract under which I was to pay Matice $4 per thousand for sawing lumber and ties."

On said 23d day of May, judgment was rendered against Matice, the principal defendant, in favor of the plaintiff for the sum of $155.06, with costs taxed at $8.73.

On May 25, 1911, summons to show cause why judgment should not be entered against him as garnishee defendant, under his disclosure, was issued to said Donovan, returnable on June 2, 1911, which summons was returned personally served. The parties appeared on the

return day, and plaintiff declared orally in an action of trover for moneys and effects mentioned in the garnishee's disclosure, also for moneys had and received. Defendant pleaded the general issue and gave notice of statutory liens. The case was heard, and judgment for plaintiff was rendered against said Donovan, as garnishee defendant, for the sum of $162.86, with costs taxed at $3.96. From this judgment defendant Donovan appealed to the circuit court of Kent county, where the case was tried before the court without a jury and judgment rendered in favor of plaintiff for the sum of $176.78, with costs to be taxed in favor of plaintiff. The case has now been removed to this court for review upon writ of error.

That portion of the findings of fact by the trial court in relation to defendant's claim of lien, essential to an understanding of that issue, is as follows:

"The consideration of the indebtedness from the garnishee defendant, Donovan, to the principal defendant, Matice, was the sawing of 46,015 feet of lumber and ties by Matice for Donovan at the price of $4 per thousand. On April 17, 1911, there was filed in the office of the clerk of Kent county what purported to be claims of liens made on behalf of the garnishee defendant, Frank Donovan, and others, to an amount totaling $161.34, as follows:

"The claims so filed were verified by Matice, the principal defendant in the suit in which Donovan had been summoned as garnishee, as hereinbefore stated. They were all identical in terms except as to the names of those said to have liens, and the amounts said to be due to the several parties respectively. The claim in the name of Donovan was as follows:

"The statement of lien made under oath of S. W. Matice for work and labor performed by Frank Donovan, in manufacturing, cutting, skidding, hauling and banking the following described property, to wit: about 46,015 feet of lumber and ties. That the last day's work of said labor was done on the 11th day of April, A. D. 1911, and said labor was performed in the township of Grattan, county of Kent, State of Michigan, and that said described property is not situate in said township of Grattan, county of Kent, State of Michigan, and that there is now due said Frank Donovan for said work and labor, over and above all legal set-offs, the sum of $6 as near as may be, for which said sum a lien is claimed upon said described property. S. W. MATICE. "Subscribed and sworn to before me this 19th day of April, A.

D. 1911.

"OLIVE M. SMITH,

'Notary Public, Kent County, Mich.

'My commission expires Feb. 27, 1915.'

"No effort appears to have been made to enforce any of these alleged liens. On April 29, 1911, there was filed another claim of lien purporting to be made on behalf of said Matice, as follows:

"The statement of lien made under oath of E. J. Doyle for and on behalf of S. W. Matice for work and labor performed by said S. W. Matice in manufacturing, cutting, skidding, hauling, banking, and scaling the following described property, to wit, 46,015 feet of lumber and ties. That the last day's work of said labor was done on the 11th day of April, A. D. 1911, and said labor was performed in the county of Kent and that said described property or a portion of the same is now situated in the county of Kent and State of Michigan, and that there is now due claimant, the said S. W. Matice, for said work and labor over and above all legal set-offs the sum of $184.60 as near as may be, for which said sum a lien is claimed upon said described property.

"Subscribed and sworn to before me this 29th day of April, A.

D. 1911.

"ALBERTA VAN WYOK,

"Notary Public, Kent County, Mich.

"Commission expires October 29th, 1913.'

"Certain proceedings were undertaken and had by S. W. Matice before John C. Loucks, a justice of the peace for the city of Grand Rapids, in the county of Kent, of which the file and docket entries in such proceedings were as follows:

"STATE OF MICHIGAN.

"The Justice Court for the City of Grand Rapids. "S. W. Matice, Plaintiff,

1911, July 25.-Upon filing an affidavit of attachment under Public Acts No. 229 of 1887 (sections 10756–10770, C. L. 1897), in such case made and provided, returnable before me at my said office in the city of Grand Rapids, Kent county, Michigan, on Aug. 4th, 1911, at 9 a. m. * * *

"1911, Aug. 4.-Cause called at 9 a. m. at my said office in said city. Plaintiff present. Defendant not present. Cause adjourned on application of the plaintiff to Aug. 28th, 1911, at 9 a. m. at my said office in said city, at which time and place cause called. Plaintiff present. Defendant not present. Cause adjourned on motion of court to Aug. 29, 1911, at 9 a. m., at my said office in said city. At which time and place cause called. Plaintiff present. Defendant not present. Written declaration filed. E. J. Doyle sworn to his authority to appear for plaintiff and testified generally on plaintiff's behalf.

"'1911, Aug. 29.-Whereupon it is considered and adjudged by the court that said plaintiff do recover from said defendant the sum of $184.60 damages. And it is also found that the same is due for labor and services performed in manufacturing the ties described in the declaration, and is a lien upon the same.

Together with

costs of suit taxed at the sum of $4 and that said plaintiff have execution therefor.

The claims of lien, approximating $161, filed by Matice in behalf of eight persons, alleged to have worked for him on his contract with Donovan, are unimportant except as they may help to a better understanding of the history of this litigation. They are not shown to have been author