text:
    DOMBROWSKI v. ROE-STEPHENS MANUFACTURING CO.
    1. Master and Servant — Negugence—Warning—Notice.
    Where a servant had worked at a saw for seven months and knew the dangers connected with its operation and could offer no explanation why it failed to work properly, except that the hoard jumped and forced his hand against .the teeth, defendant was not liable for failing to warn him of the erratic action of the saw.

    2. Same — Negugence—Proximate Cause.
    The absence of a spreader on a ripsaw, designed to prevent a fly-back resulting from the material pinching, was not the proximate cause of plaintiff’s injury which resulted from a plank jumping up and forcing the operator’s hand against the ripsaw. *

    Error to Wayne; Hally, J.
    Submitted January 14, 1914.
    (Docket No. 30.)
    Decided April 7, 1914.
    Case by Adam Dombrowski against the Roe-Stephens Manufacturing Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Florian, Moore & Wilson, for appellant.

      Keena, Lightner, Oxtoby & Oxtoby, for appellee.

       On tbe question of the master’s duty to warn or instruct servant as affected by servant’s knowledge or experience, see note in 44 L. R. A. 40.

   Kuhn, J.

From a judgment entered on a directed verdict for the defendant, the plaintiff appeals. The plaintiff, 26 years of age, was a molder’s helper in the foundry department of defendant’s plant. While operating a circular ripsaw in the wood-working department, his left thumb and first and second fingers were severed at the knuckles. He had been employed about one year and nine months before the injury, and during the last nine months had frequently used the ripsaw, and occasionally during the first year. The plaintiff described the way in which the accident occurred as follows:

“I took a piece of plank, and I wanted to cut it in half, in one strip. Then I cut through half, and when I cut through about a half the plank started to jump. And when it began to jump then I held it down with my hand, so that it would not jump. And when I began to press down on the plank to hold it down it flew up, and as it flew up my hand came in contact with the saw and cut my fingers.
“Q. How long was it from the time the plank began to jump to the time you got your fingers cut?
“A. Not long. It began to jump, and right after it flew up.
“Q. Was it a minute, a second, or two minutes or three minutes?
“A. It was not even a minute.”

On cross-examination he stated that the saw had worked well, and that he did not know why the piece flew up, as it had never done so before. There had been a fire in the plant, which necessitated the purchase of a new ripsaw, and the saw on which the plaintiff was injured was installed in December, 1910; the injury occurring on July 24, 1911. Several other molders were sworn, who testified that while operating this saw at various times boards had jumped from the table. Plaintiff’s counsel state their position in this court as follows:

“First. That plaintiff should have been warned as to the erratic action of the saw, and that failure so to warn is evidence of negligence.
“Second. That the defendant should have provided the saw with a splitter or spreader in conformity to the general custom, and that failure so to do was evidence of negligence.”

It appears from this record that plaintiff had more knowledge of this saw than any other person who worked on it. For nineteen months he had used such a saw, and this particular saw for seven months of that time. He knew how to operate the saw, and knew of the dangers in connection with it. When he had operated it the saw had always worked well, and there had never been any trouble with it. He can give no reason why it did not work well when he was injured. The case comes within the ruling of the court in Berlin v. Mershon & Co., 132 Mich. 183 (93 N. W. 248). See, also, Bauer v. Foundry Co., 132 Mich. 537 (94 N. W. 9); Mushinski v. Vincent, 135 Mich. 26 (97 N. W. 43); Fryezynski v. Leather Co., 171 Mich. 113 (137 N. W. 56).

In his denial of a motion for a new trial, the learned circuit judge said:

“Now, what caused the jumping of this wood? Under the testimony this would come from a dull saw, a saw improperly ‘set,’ or not ‘set’ at all; from the wet condition of the wood; from a peculiar grain in the wood; and after the wood passed the saw from a lack of ‘spreader.’ Plaintiff showed there was no ‘spreader.’ But this device had not been ordered installed by the factory inspector, and it was not shown that its use was so general that its absence would be deemed negligence. As to the other possible causes of the ‘jump,’ there was no testimony at all, except of the one witness who expressed an opinion that the saw was dull. He did not say, nor was he asked, how he knew this, or when it was that he made the inspection which led to the opinion given. Plaintiff had no theory of how or what was the moving cause of the accident. He did not make out a case of negligence on the part of the defendant, unless it is to be assumed that the happening of an accident, coupled with testimony that machinery does not at all times work with perfect smoothness, is sufficient to justify the plaintiff in going to the jury.”

From the testimony of experts sworn by the plaintiff, it appears that “spreaders” are used to prevent what is known as a fly-back, or kick-back, caused by the binding of the wood back of the saw, which revolves towards the operator. As a result, the board comes straight back, and is liable to strike the operator. Mr. Cuyler, a witness for plaintiff, on cross-examination, explained this as follows:

“The Court: What do you call it when it only jumps from an inch to three inches? The testimony in this case is that the board only jumped up three inches; never got any higher.
“A. Must have been something wrong, because any man that has worked in a sawmill or around a mill of any kind, around a saw of any description, knows very well that a saw will naturally throw a board back.
“The Court: There isn’t any evidence in this case that the board was ever thrown back. The board jumped. The highest it ever jumped was three inches.
“A. Did not go back?
“The Court: No. There isn’t any evidence of any throw-back or fly-back, whatever you call it. The highest it ever jumped was three inches. What do you call that?
“A. I don’t know what to think about it. That is something new to me. I have been around saws all my lifetime.
“The Court: Have I misstated the testimony in that respect?
“Mr. Oxtoby: No, your Honor.
“Mr. Wilson: Except the plaintiff, who said it jumped up on top of the saw, as I understand.
“Mr. Oxtoby: No.
“The Court: If the plaintiff said that, I want to hear the testimony.
“Mr. Oxtoby: So do I.
“The Court: I have no recollection of that, and I paid pretty close attention.
“A. Yes; they certainly did.
“Q. But other than the three factories that you have been in, where you have seen spreaders, you cannot say of your own knowledge whether the thousand and three factories in the city of Detroit use spreaders or not? Do you understand my question?
“A. I would not tell you a thing here that I don’t know.
“Q. You don’t know it?
“A. I don’t know it.
“By the Court: Q. You don’t know what would cause that?
“A. Cause what?
“Q. This jumping of an inch or inch and a half or three inches?
“A. I will tell you. Whenever a board gets on top of a saw, it goes. It don’t stop and jump up and down on the table at all.
“Q. That is not exactly what I asked you.
“A. I got as near as I could to your idea.
“Q. The testimony, as I understand it, is that as this piece was being sawed, for instance, that these boards here would jump; this end of them would jump an inch, inch and a half; one witness testified to three inches, but there was never any fly-back.
“A. Well, there was something wrong there, because I will tell you. Any man that knows anything about a saw—
“Mr. Wilson: Do you mean there is something wrong with the saw?
“A. There is something wrong in the testimony there about it jumping two or three inches or an inch and a half, because when a board raises on a saw it is going to come back. It ain’t going to stay right there, jumping two or three inches high. It is going to go. Isn’t that right?”

It does not appear that there was a fly-back, or kickback, at the time plaintiff was injured, and as a result it follows that the absence of a spreader could not have had anything to do with the accident.

We are of the opinion that no negligence was shown on the part of the defendant, and that the trial judge reached a proper conclusion in directing a verdict in its favor.

The judgment is affirmed.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    CORBY v. CITY OF DETROIT.
    1. Taxation — Special Assessment — Apportionment.
    Where a pavement was constructed in front of plaintiff’s property, and an assessment levied on all the property in the district by the front-foot rule, and it was taxed for the same amount as other property in the district, although the pavement was 60 feet wide in 'a part of the district and only 46 feet wide in front of complainant’s land, the presumption that such method of assessment was equitable, which usually prevails, would not apply.

    2. Municipal Corpobations — Council — Assessment—Equality —Assessment District.
    If the municipal authorities deem it expedient to build pavement of materially different widths or qualities on the same street, they should provide different assessment rolls in separate districts.
    3. Same — Confirmation—Uniformity.
    Under 1 Comp. Laws, § 2786 (3 How. Stat. [2d Ed.] § 6005), providing that the assessment roll when confirmed by the village council should become final and conclusive, the action of the common council in confirming an assessment roll which violates the fundamental principles of the statute as to the uniformity or equality of the tax is not final or conclusive.
    4. Same — Estoppel.
    In an action to recover back taxes paid under protest for paving, which plaintiff claimed was not of uniform width throughout the tax district, and that he should not be compelled to pay the same assessment as had been levied on property in front of which wider pavement had been built, the principle of estoppel did not preclude plaintiff from recovering a judgment for the excessive amount paid, where he had protested against the method of assessment from the beginning of the levy but did not file a bill to enjoin the improvement.

      5. Same — Interest—Penalty.
    Interest and the statutory penalty are chargeable to a taxpayer who did not pay or tender his just proportion of a special assessment for paving purposes until after the return to the county treasurer, several years after the improvement had been made, and in an action to recover a claimed excessive proportion, the fact that for some time the adjustment of the tax between the village and city of Detroit in which the village had been partly included and the village of Grosse Pointe Park was in controversy did not excuse him from paying the same.
    Error to Wayne; Mandell, J.
    Submitted January 20, 1914.
    (Docket No. 9.)
    Decided April 7, 1914.
    Assumpsit by Thomas W. Corby against the city of Detroit and village of Grosse Pointe Park for recovery of taxes paid under protest. Judgment for defendants, and plaintiff brings error.
    Reversed.

      Moore & Moore, for appellant.

      Walter Barlow (Richard I. Lawson, of counsel), for appellee city of Detroit.

      William, E. Henze, for appellee village of Grosse Pointe Park.

       The authorities on the question of assessments for improvements by the front-foot rule are gathered in an extensive note in 28 L. R. A. (N. S.) 1124.

   Steere, J.

In this action plaintiff seeks to recover the amount of certain paving taxes, previously paid under protest, which were levied upon land belonging to him, located in the then village of Fairview. The levy was made pursuant to a special assessment for paving that portion of Jefferson avenue running through said village.

Jefferson avenue is an old, important, and well-known thoroughfare of the city of Detroit, and continues easterly under the same name into contiguous territory, formerly constituting the township of Grosse Pointe, in which plaintiff’s land lies fronting on both sides of said avenue. Preliminary steps were taken for this paving by the township of Grosse Pointe under authority of a local act of the legislature passed in 1901, and $81,000 was raised by township bonds towards the expense of extending the pavement of Jeiferson avenue from the city limits easterly to an intersection known as the Cadieaux Road; but a change of municipal control over that territory took place before the work was done. In 1903 the village of Fairview was incorporated under the general law for incorporation of villages out of Grosse Pointe township territory, and included plaintiff’s property. Under the requirements of appropriate local legislation the township turned the money it had raised by bond for paving that portion of Jeiferson avenue over to the village. Two years later, in 1905, following various preliminary steps taken by the village authorities, the portion of Jefferson avenue included within its boundaries was paved at an approximate cost of $220,000, provided for by money received from the township as stated, a similar amount to be raised by special assessment, and a bond issue of about $26,000 to covér cost of paving at street intersections and in front of public grounds.

Plaintiff’s total frontage on both sides of the avenue is 1,574.30 feet. His premises consist of 120 acres composed of two adjoining private land claims of a combined width of 787.15 feet, across which the avenue runs. His special assessment, first levied in 1905, was $3,826.08. June 27, 1911, he paid to the county treasurer of Wayne county, to whom under a supplementary assessment the taxes had been returned as delinquent, $4,906.94, filing a written protest stating various alleged grounds of invalidity. In the meantime intervening causes had relieved him from legal necessity of immediate action.

The rapid growth of Detroit and its environments in that direction led to extension of its boundaries and changes in the organization of its suburbs. By an act of the legislature passed in 1907, the village of Fair-view was abolished; a portion of its territory being annexed to Detroit, and the remaining part incorporated as the village of Grosse Pointe Park, plaintiffs premises, except 10 acres remote from Jefferson avenue, coming within the boundaries of the latter.

Under this legislation it was required that “all the books, papers and documents belonging to said village shall be transferred and delivered to the common council of said city or to such offices of said city as they may direct.” Provision was also made for an adjustment and assumption between Detroit and Grosse Pointe Park of remaining rights, duties, and liabilities of Fairview. A suit in chancery to determine the proportions between the two municipalities, the details of which need not be given, resulted in a decree providing, among other things, that the city furnish the village of Grosse Pointe Park a duplicate of the special assessment roll for said paving to collect its percentage of the amount remaining unpaid against property now within the limits of said village, which was found to comprise 36.28 per cent, of the original special assessment district. Thereupon the village authorities took proper action to collect the same, and spread a reassessment of such delinquent taxes upon the general assessment roll of said village for the year 1910. Plaintiff not having paid any of the special tax against his property, it was reassessed at the same amount as before. No interest was added, though nearly five years had intervened since the original assessment was made, and the paving done. This tax, so reassessed, was not paid to the village treasurer, and at the proper time was returned as delinquent to the county treasurer.

In authorizing this improvement, and levying an assessment to defray the cost, the village authorities of Fairview acted under the provisions on that subject found in chapter 87, 1 Comp. Laws. Section 2786 (3 How. Stat. [2d Ed.] § 6005) provides that the expense of paving may be defrayed by special assessment upon the abutting premises in proportion to the number of feet front upon the street. Subchapter 8 relates generally to improvements and assessments, and section 10 (Compiler’s section 2840) declares:

“When any special assessment shall be confirmed by the council, it shall be final and conclusive.”

The record shows a series of meetings, beginning on June 5, 1905, held by- the village council in which the various steps provided by statute appear to have been taken. At a meeting held on July 3, 1905, a special assessment roll for this improvement, prepared by the village assessors, was presented, and a resolution adopted that the assessors meet with the council on July 20th for the purpose of reviewing said assessment roll. Notice of this meeting was given, and on July 20th the council and board of assessors met together for that purpose, and, not concluding their work on that day, adjourned said meeting till July 24th, on which date the council and board of assessors met together, heard objections, and reviewed the roll. During this meeting the council referred the roll back to the board of assessors for certain corrections which were at once made, and the roll forthwith again reported to the council, whereupon, and before adjournment, the council adopted a resolution confirming said special assessment roll, also directing the clerk to indorse thereon a certificate showing the date of said confirmation, and attach thereto a certified copy of the resolution.

While some question is raised by defendants as to plaintiff having made protest against this tax at the proper time, we think the record shows that he did in that particular protect his rights by appearing before both the board of assessors and the council and urging his objection.

It was conceded on the trial that the total length of this paving, measuring both sides of the avenue as assessed, was 19,587.1 feet or 3.7 miles, and that the same amount per front foot was assessed against the abutting property for the entire distance, regardless of the width or character of the pavement in front of any portion of the property. Of this, 12,020 feet easterly from the limits of the city of Detroit was paved 60 feet wide, the 3,040 feet next east being 48 feet wide, and the balance continuing to the east village limits, was but 46 feet wide. Plaintiff’s property all fronted on the narrowest portion, farthest from the city. His assessment for a pavement 46 feet wide was the same amount per front foot as that on property nearest the city for a pavement of the same kind 60 feet wide.

If the assessment as originally made by the village of Fairview in 1905 was valid, the subsequent steps taken by its assessors to collect the unpaid portion of the tax are not open to question. Plaintiff’s indicated grievance was and is, not that the improvement was made, and he was taxed for it, but that the uniform front-foot rule of assessment adopted, when applied to the varying width of the pavement in the assessment district as planned and carried out, was not and could not be, under the facts shown, just and equal between the parties assessed, or according to benefits.

It is urged against this by defendants that the plaintiff’s remedy, if any, was by a bill in chancery; that assessment in proportion to frontage is the method authorized by statute, and has many times been sustained by the courts as a rule of apportionment on the whole more just than any other; that plaintiff is estopped from now objecting through having stood by and allowed the work to be done without taking action, and especially by reason of the village council having confirmed the special assessment roll.

At the conclusion of the testimony on the trial of said cause both parties asked for a directed verdict on the undisputed evidence. The court was of the opinion that the questions raised by plaintiff could not be considered in view of the provisions of said section 2840, and directed a verdict for defendants, quoting the statute, and saying, “This special assessment was confessedly confirmed by the council, and in my judgment it thereupon became final and conclusive.”

At the inception of this inquiry we are confronted with a somewhat novel situation, radically different from any of the cases cited by counsel, in the particular that here the pavement in the same assessment district is of varying width, and a uniform front-foot cost is assessed, while in those cases the pavement is of uniform width, and the assessment presumptively equitable, as each owner is required to pay the same for the same amount of paving in front of each foot of his property. Can such presumption arise here, where the record discloses no reason why the pavement was not made of uniform width, or why the charge was uniform? Or, to go farther back with the inquiry, does the uniform foot-front rule authorized by the statute contemplate or permit its application, in one assessment district, to a plan of improvement with such variations in different parts of the district? If so, it would seem to follow that the authorities can, in their discretion, provide for a cheap and inferior pavement 20 feet wide in front of one man’s property and an expensive pavement of superior quality 60 feet wide in front of that of another, and assess each the same amount per front foot. The improbability of this being done does not affect the principle. It is only a matter of degree.

While the cost of preparing the highway for paving may vary along different parts of the way, the rule contemplates that exact equality cannot be reached in tax cases, and approximate justice is attained when each owner pays for the same kind of finished improvement in front of his property in proportion to frontage. It is said, “The idea that underlies statutes for this purpose is, that the benefit to the abutting lots is generally in proportion to the length of their respective fronts, and that as a rule this principle of apportionment is more just than any other” (Thomas v. Gain, 35 Mich. 155 [24 Am. Rep. 535]) ; and the principle is sought to be strengthened in our statute by a provision that where, owing to the size or shape of a particular lot, the rule works particular injustice, the authorities may assess such lot for such number of feet frontage as in their opinion would be just.

“The whole tenor of the law upon that subject is to maintain an equal foot-front assessment on all property, equitable and proportionate to benefits, with a discretion given the assessing authorities to assess for a less number of feet, but at the regular price per foot in cases where justice and equity demand it.” Cote v. Village of Highland Park, 173 Mich. 201 (139 N. W. 69).

We think the uniform foot-front rule contemplates a uniform system of improvement within the assessment district. If the municipal authorities decide it expedient to build pavements of materially different width or quality in different localities, they could and should provide different assessment rolls, in different assessment districts, therefor. We think this course is contemplated and authorized by section 2786, 1 Comp. Laws.

Confirmation by the council of any special assessment roll which, in its application to proposed improvements, violates the fundamental principles of the statute on which its validity depends is not final and conclusive upon that question.

In connection with the steps taken subsequent to the disorganization of Fairview in 1907, it is urged that the city of Detroit cannot be held liable in this action, because it never received, and is not entitled to, any of this money paid by plaintiff under protest; that the tax was not levied upon land annexed to the city. The steps referred to were taken under Local Act No. 1, p. 56, Extra Session 1907, which provides:

“All suits or actions, either at law or in equity, hereafter commenced upon any debt, obligation or right of action, in favor of or against said village (Fairview) shall be prosecuted by or against the city of Detroit and the village of Grosse Pointe Park as the case may be. Any judgment hereafter rendered upon any such debt or obligation or in any such suit shall be paid by said city of Detroit and said village of Grosse Pointe Park in the above proportion and may be enforced as judgments against municipalities are usually enforced and as provided by law for the enforcement of judgments against the city of Detroit and villages.”

Under said act the city of Detroit and village of Grosse Pointe Park acquired together all the property and rights of the village of Fairview, and became responsible for its obligations. With the aid of a court of chancery, they adjusted such matters between themselves; but this did not necessarily relieve either as to third parties. This paving was done by Fair-view as one improvement in a single district now partly belonging to Detroit and partly to Grosse Pointe Park. If a wrong was done, it was inflicted when the assessment was made and confirmed, and affected one way or the other all property then within the assessment district. Grosse Pointe Park, as to third parties at least, in putting the unpaid tax on its tax roll, was acting for both itself and Detroit, and the county of Wayne collected it for both. Plaintiff is not concerned with the accounting and division of interests between these two. Under the special act referred to we think that, if the village of Fairview would have been liable, both defendants to this action are liable; the judgment when obtained, however, to be paid or enforced in the • proportion and manner specified in the statute.

Plaintiff’s position in this litigation is consistent with his attitude and protests to the village authorities when the assessment was levied, and the pavement laid. He was agreeable to the improvement, and did not desire to prevent it, but protested that the assessment was inequitable and unjust, not made on a proper basis under the statute, and that he should not be compelled to pay for 60 feet, unless that width was laid in front of his premises. On the trial in the lower court his counsel, though insisting that the tax is invalid in its entirety, and asking a judgment to that effect, if an equitable reduction could not be legally made, said, “Mr. Corby would prefer to adjust all the equities right here;” and on the oral argument in this court took the same position, saying, “We went to the council and asked for 60 feet, and they refused us, * * * our whole objection is their charging us for what we did not get,” and suggested that this court could equitably and finally dispose of the matter along lines indicated in Fletcher Paper Co. v. City of Alpena, 160 Mich. 462 (125 N. W. 405).

Defendants’ counsel say to this, “Plaintiff having placed his case on equitable grounds, equitable rules should be applied,” citing Tuller v. City of Detroit, 126 Mich. 605 (85 N. W. 1080), and cases cited there; Nowlen v. City of Benton Harbor, 134 Mich. 401 (96 N. W. 450); Farr v. City of Detroit, 136 Mich. 200 (99 N. W. 19); and Stewart v. City of Detroit, 137 Mich. 381 (100 N. W. 613).

These cases and many others which might be cited apply the equitable doctrine of estoppel to persons who had knowledge that improvements which enhanced the value of their property were being made, stood by, and took no steps to prevent them proceeding, but later, after having received the benefit of the same, brought suit to defeat the tax on technical grounds, and thus escape paying their just share of the cost of such improvements.

In this case plaintiff, not objecting to the improvement, and standing willing to pay his just share according to a proper assessment, timely interposed his objection to the unjust excess imposed upon him by the method of assessment pursued. As applied to that portion of the tax which he ought of right to pay, those authorities are well in point.

In this equitable action of assumpsit it is permissible, ■ under Fletcher Paper Co. v. City of Alpena, supra, and cases there cited, to conclude this litigation by a judgment in plaintiff’s favor for the amount his taxes were unjustly increased by reason of the wrongful assessment, together with the penalties, interest, and fees relating thereto and collected, provided the record .furnishes sufficient data therefor; and we are asked to do so.

Taking the full amount assessed and the total number of square yards as a basis, the overcharge of which plaintiff complains is $808.67. Deducting this from $3,826.08, the amount actually assessed against him, his just tax, due July 24, 1905, would be $3,017.41. He did not pay or tender this until June 27, 1911. We cannot agree with his contention that no interest, penalties, or fees should be added to this amount. It is true that delays and a somewhat chaotic condition of municipal affairs in that territory resulted for a time from the disorganization of Fairview village and subsequent readjustments; but the facts remain that the improvement in front of plaintiff’s property had been made, and he had the benefit of it during all the intervening time, and paid nothing. To stand on equitable grounds as to his just proportion of the tax, he could and should, when it was due, have paid or tendered that amount to the village treasurer. We see no equitable reason why he should be relieved from interest and fees as to that which he of right should have paid when due.

The record shows that on the trial in the court below all parties requested the court to direct a verdict, claiming no questions of fact for a jury were involved ; the only issue being upon propositions of law.

The case will be remanded to the trial court, with instructions to compute the tax against plaintiff as above indicated, and enter a judgment in his favor for the balance. Plaintiff will recover costs of both courts.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred.


author: Moore, J. Ostrander, J.

text:
    GARDNER v. LE FEVRE.
    1. Assignments — Liens—Bailments—Mechanics’ Liens eoe. Repairs.
    The lien of an automobile repair man for repairs and a tire furnished to the owner of an automobile is assignable and enforceable in favor of the assignee who obtains possession of the machine. 3 Comp. Laws, §10054 (5 How. Stat. [2d Ed.] § 12704).

    2. Same — Freight Charges — Payment, Application oe.
    While an item for freight paid by the garage owner was not assignable as a part of the account, it could be treated as paid by the proprietor of the automobile out of $75 which, had been advanced by the owner on account, and which more than covered the freight.
    3. Same.
    Although defendant may not have had a lien for an extra tire furnished for the automobile, he was entitled to a common-law lien on the tire for its value.
    Error to Muskegon; Sullivan, J.
    Submitted January 20, 1914.
    (Docket No. 118.)
    Decided April 7, 1914.
    Replevin by John H. Gardner against George Le Fevre for an automobile. Judgment for defendant on a directed verdict, Plaintiff brings error.
    Affirmed.

      Turner & Turner, for appellant.

      William Carpenter, for appellee.

       As to the right of the owner of a garage to a lien, see note in 1 L. R. A. (N. S.) 240.

   Moore, J.

In 1911, the plaintiff, who owned an automobile, a Thomas flyer, then at Tecumseh, Mich., made an arrangement with one Eyke, who owned a garage at Muskegon, to the effect that the automobile would be shipped by rail to Muskegon, and would be received by Mr. Eyke and put in repair for the plaintiff. The automobile was shipped, and upon its arrival in Muskegon Mr. Eyke paid freight upon it to the railroad company, amounting to $83.60. He also furnished an extra tire, which was strapped into the receptacle for extra tires on the side of the machine. The charge for the tire was $50.75.

All this was done prior to September 15, 1911, at which time a settlement was made between Mr. Gardner and Mr. Eyke, and $75 was paid on the account, leaving a balance of $171.60. Mr. Gardner was an actor, going about from place to place, and it was agreed at the time of settlement that the machine should remain for the present ’with Mr. Eyke, and that Mr. Gardner should pay storage at the rate of $1 a week until he should pay the account and take the car away. Later Mr. Eyke went .out of business and assigned his account and claim to the defendant. The plaintiff made a demand upon the defendant for the automobile, without offering to pay the account. The defendant declined to deliver the machine until the account was paid, and replevin was brought. Upon the trial the judge directed the jury to find that the title to the automobile was in the plaintiff, but that defendant had a lien thereon for the balance due on account, with interest amounting in all to $164.85, and a verdict and judgment was so entered. The case is here by writ of error.

It is claimed the right to enforce a lien cannot be assigned, citing Caldwell v. Lawrence, 10 Wis. 331, and Pearsons v. Tincker, 36 Me. 384. Whatever else may be said of these cases, we think they are not the law of this State.- Section 10054, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12704), recognizes the right to assign choses in action and other property rights. See cases cited in note to this section. In De Witt v. Prescott, 51 Mich. 298 (16 N. W. 656), Justice Campbell, speaking for the court, said:

“The more important allegations of error relate to the rulings of the court as to what circumstances would relieve defendants from responsibility for the result of the replevin suit, and discharge them from any lien which may have existed. And several of the charges and refusals complained of are connected with the alleged waiver of the lien, by allowing the lumber to be shipped to Welch & Co.
“The court below held that any delivery of the lum'ber by Eames to Welch & Co. would discharge the lien, unless preserved by agreement, and that no such agreement would bind defendants or sustain the lien, so far as their responsibility to discharge or defend against it was concerned, unless made with their consent or ratification. This doctrine was laid down very broadly, and it was also intimated that an agreement to remove the lumber from this into ánother jurisdiction might be treated as fraudulent and injurious to defendants. And the court refused to charge that such an agreement, made without fraudulent intent and with no design to injure defendants, would not be of itself a fraud on them.
“We have not found authority for any such unqualified doctrine, and no cases were cited on the argument sustaining it. It is quite uniformly held that an unconditional surrender of possession, or conduct showing a design to discharge the lien, or plainly inconsistent with it, will usually put an end to it. But it seems equally clear that the holder of the lien may allow the owner of the property to take it into his possession and remove it without prejudice to the lien, if so agreed. Wheeler v. M’Farland, 10 Wend. [N. Y.] 318. And it is also undisputed that such a lien cannot be destroyed by a removal, without the consent of the lienholder, from his possession. And in Nash v. Mosher, 19 Wend. [N. Y.] 431, Cowan, J., in reviewing the authorities, comes to the conclusion that the holder of a possessory lien can transfer the lien with the possession, as other valuable rights may be assigned.”

In this case it is clear Mr. Eyke did not intend to part with his possession and the lien for the benefit of the plaintiff. On the contrary, he assigned the claim and delivered the automobile into the possession of the defendant, to be held by him until the claim was paid.

It is claimed a lien cannot be asserted for the freight paid. We do not think it necessary to say whether, if nothing had been paid by plaintiff on the account, the lien could be enforced. As a matter of fact $75 was paid after the freight bill was paid, and as the amount paid for the freight was the first item of Mr. Eyke’s claim, the payment could well be applied upon the freight bill, which it would more than pay. People, for use of Holmes, v. Sheehan, 118 Mich. 539 (77 N. W. 88); People, for use of C. H. Little Co., v. Grant, 139 Mich. 26 (102 N. W. 226).

It is said it was error to hold that the lien attached for the extra tire furnished. Section 10747, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13805), is as follows:

"When any person shall deliver to any mechanic, artisan or tradesman, any watch, clock, article of furniture or jewelry, implement, clothing or other article of value, to be altered, fitted or repaired, such mechanic, artisan or tradesman shall have a lien thereon for the just value of the labor and skill applied thereto by him, and may retain possession of the same until such charges are paid.”

One familiar with automobiles and the use made of them would regard an extra tire as part of a properly equipped automobile. A prudent, experienced owner of a Thomas flyer would hardly venture away from home with it without carrying an extra tire. It will be noticed the language of the statute is “to be altered, fitted or repaired.” We think, when Mr. Eyke fitted this automobile with an extra tire, which became a part of the outfit, the lien given by the statute attached.

We think it not necessary to discuss, although they have had our attention, the other assignments of error.

The judgment is affirmed.

Brooke, J., concurred with Moore, J.

Ostrander, J.

In my opinion, plaintiff has no lien upon the automobile for the price of the extra tire,, nor has he any lien under the statute relied upon for the price of the tire. I agree with the result announced in the opinion of Mr. Justice Moore for the reasons he gives, and the further reason that plaintiff had a lien at common law upon the tire for its value.

McAlvay, C. J., and Kuhn, Stone, Bird, and Steere, JJ., concurred with Ostrander, J.


author: Stone, J.

text:
    RICKMAN v. RICKMAN.
    1. Receivers — Insolvency — Assets of Insolvent — Liens—Conflict of Laws — Equity.
    The appointment of a receiver, in proceedings in this State to dissolve and wind up a partnership that was insolvent, did not destroy the effect of a lien or preference obtained in* Wisconsin prior to the filing of the bill by a subcontractor of the copartnership: nor did the receiver have the right or authority to take charge of the assets of the firm so affected by the subcontractor’s lien, where no proceedings in bankruptcy had been instituted.
    2. Injunction — Equity.
    A bill of complaint to enjoin a creditor of the insolvent copartnership, who has garnished funds due to it, from proceeding to enforce his lien, will not lie in behalf of a subsequently appointed receiver.
    ■ 3. Same — Debtor and Creditor — Judgment Creditors’ Claims.
    Nor should an injunction be allowed which would deprive creditors of this State of their liens obtained in another, leaving creditors of foreign jurisdictions to exhaust a fund due to the insolvent by suits or garnishment. proceedings in their courts.

      ' 4. Receivers — Effect of Appointment — Partnership, Dissolu- \ TION OF.
    After the receiver has been appointed, the creditor’s right to sequester property by attachment or other method of obtaining priority is suspended.
    5. Same — Priorities—Marshaling Assets.
    Nor was a Michigan creditor in contempt of court for proceeding in a foreign jurisdiction to take judgment, having commenced proceedings to obtain and enforce his lien as a subcontractor on a public building before any receiver had been appointed.
    6. Same — International Law, Private — Mechanics’ Liens.
    Where a subcontractor, who provided work, labor, and materials on a county building in the State of Michigan, brought suit in that jurisdiction under Wisconsin statutes, section 3328, authorizing judgment against the county for the amount of the indebtedness due from the principal contractor, he obtained a lien on the funds due from the county to the contractor and was entitled to priority of payment over other creditors who commenced proceedings later to enforce their liens.
    7. Same — Courts—Conflict of Laws.
    The construction which the courts of Wisconsin place on their statutes should be followed in this State, in proceedings to dissolve a partnership wherein the rights of materialmen and subcontractors, who have obtained prior liens under Wisconsin law upon funds due the partnership, are in question.
    8. Same — Liens—Insolvency.
    The receiver of a copartnership, appointed in proceedings for voluntary dissolution by mutual consent, was not entitled to possession of the fund, since he takes only the rights of the partnership as affected by claims and liens that would prevail against the firm if it attempted to assert rights to the fund.
    9. Same — Liens.
    A lien on the funds due from the county to the general contractor attached when suit was filed in Wisconsin by the subcontractor, and the latter was entitled to proceed with the suits and to hold the money subject to his lien.
    10. Garnishment — Liens—Priority.
    It is a general rule that service of process in garnishment creates a lien on the property of the principal defendant, entitling plaintiff to hold such property for the satisfaction of his claim, and it is so recognized in Wisconsin.
    11. Partnership — Process—Service—Substituted Service.
    Service of process on one of the copartners in Wisconsin was sufficient to secure a valid lien on the fund which belonged to the partnership.
    12. Judgment — Receivers—Partnership.
    A judgment in Wisconsin, based on service of process upon one partner, in proceedings commenced before the appointment of a receiver of the firm assets, bound the receiver, being conclusive on the parties to the action and their privies.
    13. Conflict of Laws — Private International Law — Comity. The exception to the rule of comity between courts of different States whereby citizens of the forum are protected as against residents of another State, held, not to be involved.
    Appeal from. Kalamazoo; Knappen, J.
    Submitted January 12, 1914.
    (Docket No. 57.)
    Decided April 7, 1914.
    Bill by Arthur W. Rickman against Alfred G. Rick-man and others for the voluntary dissolution and winding up of George Rickman Sons’ Company, a co-partnership. From a decree for claimant Thomas M. Robinson, the Michigan Trust Company, receiver, appeals.
    Affirmed.

      Alfred, J. Mills and Clapperton, Owen & Flatten, for appellant.

      Floyd A. Wilson, for appellee.
   Stone, J.

This case is here upon the appeal of the Michigan Trust Company, receiver, in the special matter of the claim of Thomas M. Robinson. In the statement and consideration of this case the dates of the several steps and proceedings are important.

On September 27, 1910, a bill was filed in the circuit court for the county of Kalamazoo, in chancery, by the above-named complainant, against the above-named defendants, who were the other copartners of George Rickman Sons’ Company, for the dissolution of said copartnership and an accounting. On the same day the following consent order, duly entitled, was made by the said court:

“First. That the Michigan Trust Company, a Michigan corporation, having its principal business office at the city of Grand Rapids, Mich., and being authorized by law to act as such, be and is hereby appointed temporary receiver of all and singular the assets and property of said copartnership firm, with full power and authority to take possession of each, every, and all thereof, to conserve and control the same, to manage and conduct the business heretofore carried on by said copartnership, to collect and receive the moneys due and owing to said copartnership or to said receiver and out of said receipts to pay the expenses of prosecuting said business, of maintaining and conserving the properties of said firm and such dividends to' the creditors of said copartnership as the court, from time to time, shall direct, and such receiver shall have authority to buy such material as may be necessary in the usual course of trade to carry out the purposes of its appointment, and said receiver shall also have all the usual powers of a receiver appointed by a court of chancery in partnership cases. * * * * *
“Third. It also appearing to the court that the co-partnership, as part of its assets, has certain uncompleted contracts for public and private buildings, which it is for the interest of all concerned to complete and finish. It is further ordered that the receiver be and is authorized and empowered to enter upon the completion of said contracts and for that purpose to use any and all money or funds coming-into its hands from the copartnership, or from said contracts, to that end until the filing of the report required by this order, and the further order and direction of this court, and in the meantime to borrow upon the faith of the property of said copartnership temporarily of such sums of money as it may find to be absolutely necessary for said purpose.
“Fourth. All moneys borrowed by said receiver pursuant to this order shall be evidenced and secured by receiver’s certificates approved by this court as to the form thereof.
“Fifth. The receiver shall proceed to make an accurate inventory of the assets and effects of said co-partnership and notify the creditors, so far as it shall be able to ascertain same, of the pendency of this suit and its appointment to said receivership. The receiver shall also examine into the condition of all of said contracts, and within 30 days after the entry of this order file with this court the said inventory, a list of the creditors of said copartnership and the amount of their demand, as claimed by them respectively, so far as the same can be ascertained by it, and also a full report showing the situation and condition of the copartnership assets, the business carried on by it, the said contracts, and make such recommendations to the court concerning same and the future conduct, management, and disposition of same as it shall deem or be advised is necessary and proper to give the court and all concerned detailed information of the assets and condition of said copartnership and its property and assets, to the end that the court may then make such further or other order in the premises as it may deem to be necessary or expedient.
“Sixth. The appointment of said receiver shall take effect on the filing of an acceptance, in writing, by the said Michigan Trust Company, containing an undertaking on its part for the faithful discharge of the duties of its appointment, and for the accounting of all moneys and effects received by it, as such receiver, and such appointment shall continue until the entry of the final decree in this cause, or until the further order of this court in the premises.
“Seventh. The written consent of the said defendants to the appointment of said receiver and the entry of this order shall be filed with the register of this court.
“Eighth. The parties to this cause, or any other party, or parties, in interest, are given leave to apply to the court at any time for any other or further grant of power to the said receiver, or for such other order respecting the conduct of said receivership as circumstances may render advisable or necessary.”

On the same day an acceptance of appointment, duly entitled, was filed by the Michigan Trust Company.

It appeared in evidence at the hearing that all creditors of said copartnership were immediately notified by the following letter of the appointment of the receiver:

“Grand Rapids, Mich., Sept. 29, 1910. “To the Creditors op George Rickman Sons’ Company, op Kalamazoo, Michigan.
“Sirs:
“The undersigned was on the 27th day of September, 1910, appointed temporary receiver of the assets of George Rickman Sons’ Company, a partnership, by the circuit court for the county of Kalamazoo, Michigan, in a suit brought by Arthur W. Rickman, one of the partners, against the remaining members of the firm of George Rickman Sons’ Co., for a dissolution of partnership.
“We have accepted the trust, and have taken possession, but have not had opportunity to take an accurate inventory of the assets. We will immediately give the affairs of this firm a thorough investigation, and. expect to advise creditors of the exact condition in as short a time, as possible.
“The assets and liabilities as stated by the members of this firm to us, are as follows:
“The Rickman Hotel, at Kalamazoo, which is an eight-story hotel erected about two years ago, now the best hotel in Kalamazoo, and enjoying a very piofitable business, valued at $135,000 to $150,000. Two large flat buildings in Kalamazoo, valued at $25,000 to $28,000.
“In addition to this, they claim amounts due on building contracts completed and nearly completed, about $74,000. Also other, general accounts receivable, of which we have not had definite statement.
“As against these assets, there are real estate mortgages of $62,000, general unsecured liabilities of about $80,000, and amount necessary to complete contracts estimated at $30,000. Upon these figures, which we have not yet been able to verify, this firm would seem to be amply solvent, and it is claimed that their present embarrassment is entirely due to the action of certain creditors in endeavoring to force claims by lien proceedings against the buildings under construction, and to the fact that their other assets are such as not to be immediately available in their business, and the action taken has been with the idea of obtaining financial assistance necessary to enable them to complete their contracts and realize the amounts due thereon.
“It will be of great assistance to us in our investigation if creditors will send us itemized statement of their claims, so that we can ascertain exactly the amount of liabilities. This statement need not be sworn to.
“If any of the indebtedness is in the form of promissory notes, we would like a statement of these notes, with date of execution and of maturity.
“We trust that you will assist us in this matter, and that we may promptly hear from you.
“Very respectfully,
“The Michigan Trust Company,
“By George Hefperan, Secretary.”

The firm of George Rickman Sons’ Company consisted of four members (the parties to this suit). It was the principal contractor in the year 1910 for the erection of a courthouse for Oneida county, at Rhine-lander, Wis., and also for the erection of the Owosso postoffice at Owosso, Mich.; the Holland city hall at Holland, Mich; a high school building at Chelsea, Mich.; and the Masonic Temple at Flint, Mich. The claimant, Thomas M. Robinson, was one of the subcontractors in the construction of said courthouse at Rhinelander, Wis., and was also one of the subcontractors in the construction of the above-mentioned buildings in Michigan.

The following subcontractors for the building and construction of the said courthouse brought suit in the circuit court for said Oneida county, against above-named complainant and defendants as copartners and said Oneida county jointly, the time of the several proceedings in each of the said shits being as follows:

(a) Saginaw Sheet Metal Works, a Michigan corporation. Summons issued August 25, 1910, served upon said Oneida county at 4:-30 p. m. on August 25, 1910; served upon balance of defendants by personal service upon said Arthur Rickman, one of the said defendants, at Rhinelander, said Oneida county, August 25, 1910. Judgment was rendered November 1, 1910, against the said above-named complainant and defendants composing said copartnership, and against said Oneida county, in the sum of $1,250.72 damages and $29.80 costs. Judgment and costs ($1,280.52) paid plaintiff November 15, 1910.
“(b) Thomas M. Robinson, of Michigan. Summons issued August 25, 1910, and served upon said Oneida county at 4:21 p. m., August 25, 1910, and upon the balance of said defendants by personal service upon said Arthur Rickman, at Rhinelander, said Oneida county, on August 25, 1910. Judgment was rendered November 1, 1910, against said above-named complainant and defendants composing said copartnership and against said Oneida county, in the sum of $2,965.26 damages, and $28.82 costs. Judgment and costs ($2,994.08) paid plaintiff (above claimant) November 15, 1910.
“(e) Union Foundry Works, an Illinois corporation. Summons issued August 25, 1910; served upon said Oneida county at 4:22‘ p. m., and upon the balance of said defendants by service upon said Arthur Rickman, personally, at Rhinelander, said Oneida county. Judgment was rendered November 1, 1910, against said above-named complainant and defendants, composing said copartnership, and against said Oneida county in the sum of $2,406.51 damages and costs.
“(d) Scott-Taylor Company, a Wisconsin corporation, of Ashland, Wis. Summons issued' August 25, 1910, and served upon said Oneida county at 4:23 p. m. on said day, and upon the balance of said defendants by personal service upon said Arthur Rickman, at Rhinelander, said Oneida county. Judgment was rendered November 1, 1910, against said complainant and defendants, composing said copartnership, in the. sum of $909.37 damages and costs, and against said Oneida county in the sum of $307.86.
“(e) Wheeler-Blaney Company, a Michigan corporation. Summons issued November 24, 1910; served upon said Oneida county at 3:45 p. m. on said day; no service being made upon balance of defendants. No further steps taken to secure judgment.”

At the time (August 25, 1910) these suits were commenced, there was due said copartnership from said Oneida county, on estimates for work done on said courthouse, the sum of $6,998.97.

The sections of the statutes under which the suit of claimant, in Wisconsin, was brought are sections 3328 and 2884 of the Laws of Wisconsin, Revision of 1898, and are as follows:

“Sec. 3328. Any subcontractor who has done work or labor, or furnished materials to any principal contractor for the construction, repair or removal of any building or machinery for any county, town, city, village, or school district, may maintain an action therefor in the county in which such work, labor or materials were done or furnished, against such principal contractor, and such county * * * jointly, for the recovery thereof; but no judgment shall be rendered against any defendant therein, other than such principal contractor for any amount greater than the amount due from it to such principal contractor at the time of the commencement of such action. Such county * * * when served with the summons in any such action, may give notice thereof to such principal contractor, and on so doing, need not further defend such action. On rendition of judgment in such action against such principal contractor, the court may also render judgment against such county * ^ * for the amount due from it to such principal contractor, at the time of the commencement of such action, or to a sufficient amount to pay the judgment recovered against the principal contractor, and payment thereof shall discharge its indebtedness to such principal contractor to the amount so paid. Such principal contractor may, in .such action, file in the court in which it is commenced, a bond, in such sum and with such sureties as the judge of such court shall approve, conditioned for the payment of any judgment that may be rendered in such action, and thereupon the liability of such county * * * hereunder, shall cease, and the action as to it shall be discontinued without costs to it.”
“Sec. 2884. When the action is against two or more defendants, and the summons is served on one or more, but not on all of them, the plaintiff may proceed as follows:
“1. If the action be against several persons, jointly indebted upon a contract, he may proceed against the defendant served, unless the court shall otherwise direct, and, if he recover judgment, it may be entered in form against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate property of the defendant’served, and, if they are subject to arrest, against the persons of the defendants served.
“2. In any action against defendants severally liable, he may proceed against the defendant, or defendants, served, in the same manner as if such defendant or defendants were the only parties proceeded against.
“3. If all the defendants have been served, judgment may be taken against any, or either of them, severally, when the plaintiff would be entitled to judgment against such defendant or defendants, if the action had been against them, or any of them, alone.”
An exemplified copy of the judgment rendered in Wisconsin in favor of said claimant was offered and received in evidence, and is as follows:
“State of Wisconsin, In Circuit Court, Oneida County.
“Thomas M. Eobinson,
“Plaintiff,
“v.
“Alfred G. Eickman, Arthur W. Eickman, Peter L. Eickman, and William B. Eickman, Copartners, Doing Business under the Firm Name of George Eickman Sons’ Company, and Oneida County, “Defendants.
“The summons in this action having been personally served upon the above-named defendants, Arthur W. Eickman and Oneida county, on the 25th day of August, 1910, and due proof of such service having been made and filed, and it appearing by proof duly made and filed that after due diligence the above-named defendants Alfred G. Eickman, Peter L. Eickman, and William B. Eickman cannot be found and have not been served, and it further appearing by the affidavit of H. F. Steele, attorney for the plaintiff, that no demand for copy of the complaint, and no answer, demurrer, or notice of appearance, has been served upon or received by him from or in behalf of said defendant Arthur W. Eickman, and that neither said Arthur W. Eickman nor the above-named defendants Alfred G. Eickman, Peter L. Eickman, and William B. Eickman, or any or either of them, have appeared in this action; and this action having come on for trial at this regular term of court on this 1st day of November, 1910, upon the answer of the above-named defendant, Oneida county, H. F. Steele appearing for the plaintiff and S. S. Miller for the defendant; and it appearing from the complaint herein, which is duly-verified, that the above-named defendants Alfred G. Rickman, Arthur W. Rickman, Peter L. Rickman, and William B. Rickman, as principal contractors, are jointly indebted to the plaintiff herein, as subcontractor, upon the contracts set out in said complaint, and in the amount demanded in same, and that judgment should be rendered in form against all of the defendants last named, and the said defendant Oneida county having, by its answer herein, admitted its indebtedness to the said defendants Alfred G. Rickman, Arthur W. Rickman, Peter L. Rickman, and William B. Rickman jointly, at the time of the commencement of this action, as principal contractors, upon its contract with same, set out in the complaint, in the amount of $6,988.97, and not having denied any of the materia!allegations of said complaint: Now, on motion of H. F. Steele, attorney for the plaintiff, it is ordered and adjudged that the said Thomas M. Robinson, plaintiff, do have and recover of the said defendants Alfred G. Rickman, Arthur W. Rickman, Peter L. Rickman, and William B. Rickman, and the defendant Oneida county, the sum of $2,965.26, damages, and the sum of $28.82 costs, making in all the sum of $2,995.08; this judgment to be enforced only against the joint property of said defendants Alfred G. Rickman, Arthur W. Rickman, Peter L. Rickman, and William B. Rickman, and the separate property of said defendants Arthur W. Rickman and Oneida county.
“Dated November 1, 1910.
“By the Court:
“A. H. Reid, Circuit Judge.”

There was no order issued by the circuit court of the county of Kalamazoo, in chancery, in this suit restraining the claimant, or other creditors, from maintaining the suits in Wisconsin. No ancillary receivership proceedings were sought to be brought in said Oneida county, and no receiver, for the said complainant and defendants, as such copartners, or for the property of said copartnership, was appointed in said county or State. No action was taken by said copartners, or by the said receiver, to stay the proceedings in said causes in Oneida county, or to prevent the rendition of said judgments.

On November 10 or 11, 1910, and prior to the payment of said judgments in Wisconsin, the attorney for the receiver, and for Henry G. Dykehouse, one of the creditors, went to Rhinelander and there saw H. F. Steele, who was attorney for all of the claimants, who had secured judgments against the Rickman Company and Oneida county jointly. He objected to any payments being made at that time to the judgment creditors by the county of Oneida, to Mr. Steele, and also Mr. Miller, who was a member of the Building Committee of the Board of Supervisors, and at that time served upon Mr. Steele the following notice:

“To H. F. Steele, Rhinelander, Wisconsin, attorney for the Saginaw Sheet Metal Works, Thomas M. Robinson, the Union Foundry Works and Scott-Taylor Company, and ail persons represented by you are hereby notified, in behalf of the Michigan Trust Company of Grand Rapids, Michigan, which was on the 27th day of September, 1910, duly appointed receiver of Arthur W. Rickman, Peter L. Rickman, William D. Rickman and Alfred G. Rickman, as copártners, doing business under the name of George Rickman Sons’ Company, by the circuit court for the county of Kalamazoo, Kalamazoo county, State of Michigan, for and in the interests of the creditors of said firm and on behalf of Henry G. Dykehouse as a creditor of the said firm of George Rickman Sons’ Company, that said firm of George Rickman Sons’ Company, is and was at and before the commencement of the suits hereinafter set forth insolvent and had sufficient assets only to pay a percentage upon the debts of said copartnership; and that whereas, on, to wit, the 25th day of August, 1910, suits were commenced in the circuit court for the county of Oneida, State of Wisconsin, one by the Saginaw Sheet Metal Works, one by the Union Foundry Works, one by Thomas M. Robinson, and one by the Scott-Taylor Company against said copartnership, George Rickman Sons’ Company and Oneida county, in which said several actions judgments were thereafter rendered on the 21st day of October, 1910, and the 1st day. of November, 1910, said judgments were docketed by the said clerk of said court on the 3d day of November, 1910, as will appear by the said records and files in said court: You are therefore notified that pending the filing of a petition in bankruptcy in the district court of the United States for the western district of Michigan, southern division, and pending the adjudication of George Rick-,man Sons’ Company to be bankrupt, any payments made by said Oneida county, to said judgment creditors and plaintiffs, will be considered void and will be void as preferences under the bankruptcy act of the United States and that appropriate actions will be maintained by the receiver in bankruptcy and by the trustee in bankruptcy to set aside and declare void all such payments and to recover the amount of said payments from said judgment creditors and plaintiffs and to recover the balance from said Oneida county upon its contract with said firm of George Rickman Sons’ Company for the construction of a courthouse at Rhinelander, Wisconsin, out' of which the consideration of said claims of said judgment creditors arose.”

The said attorney for the receiver represented to the parties addressed in the above notice that unless these judgments were vacated, bankruptcy proceedings would be brought. This statement was made on behalf of the receiver and on behalf of Mr. Dykehouse, the creditor, whom he represented.

Bankruptcy proceedings had not been commenced, and in fact were never brought, but had been discussed at that time, and upon his return to Grand Rapids he wrote Mr. Steele the following letter; payment of the claimant’s judgment, however, had been made on November 15, 1910, by the county of Oneida:

“Nov. 16, 1910.
“Mr. H. F. Steele,
“Attorney at Law,
Rhinelander, Wis.
“Dear Sir:
“Since my return home I have further considered the matter of the claims in the suits of Thos. M. Robinson, Union Foundry Works and Scott-Taylor Co. upon their judgments at Rhinelander. It seems to me that there can be little question but that these judgments do not constitute such a lien as to give them a preference in bankruptcy. While I am ready to file a petition if these creditors stand on their claims I would prefer not to have this additional expense if after conferring with your client you would be willing to release these judgments, and shall therefore wait for your communication in regard to their intention in the matter of these suits'. Rather than have the expense of litigation over the matter, as I stated to you at Rhinelander, I would be willing to make some concession. In view of the fact that the affairs of the estates are still in an unliquidated condition, so that we cannot definitely determine the exact amount of assets and liabilities, it would be difficult at this time to make a definite agreement in this regard. If your clients would be willing to wait for thirty days until the affairs of the estate would be worked out more fully we would then be in a better position to determine just how much of a concession we would be willing to make on the settlement of these matters without further litigation. Will you not consider this matter fully and write me at as early date as possible, letting me know your determination in this regard.
“Yours very truly,
“Charles M. Owen.”

On January 20, 1911, a decree was entered in the said cause. It found that said copartnership had been engaged in the business of building, and in the management of a hotel at Kalamazoo, known as the Hotel Rickman; that there had been no formal written articles of copartnership; that said copartnership was-not agreed to be continued for any definite time, but was terminable at any time at the will of either of said copartners, and that said copartnership was by said decree dissolved; that the interests of said co-partners were equal, each having an undivided one-fourth interest in said firm and its assets; that inasmuch as it was necessary in the first instance to pay the firm creditors, the court did not, at that time, fix or determine the equities of the copartners between themselves, in the assets of said firm, but ordered that either of said copartners should be at liberty to apply to the court to determine such equities as between themselves, in any surplus that should remain for distribution. From the proofs it appeared that the indebtedness of said firm was then in excess of .$200,000, and that it was desirable, in the interest of creditors, to make a sale of the assets of said firm •and to liquidate said assets for the purpose of paying the indebtedness of said firm, or such dividends thereon, as it might be possible to pay after satisfying the expenses of the receivership and of the management and conservation of the firm assets and business.

The Michigan Trust Company was by the decree appointed receiver of all and singular the assets and properties of said firm, with full power to take possession thereof, and conserve and control the same, to manage and conduct the business theretofore carried on by said firm, to manage and conduct the operation, and to continue the business of the Hotel Rickman, and to make such agreements and incur such expense as should be necessary for the management, control, and operation of said property, to collect and receive the moneys due or owing to said firm, or to said receiver, or to the temporary receiver theretofore appointed, and out of said receipts to pay expenses of prosecuting the business and management of the several properties of said firm, and such dividends to creditors as the court might, from time to time, direct, and that said receiver' should also have all the usual powers of a receiver appointed by a court of chancery in partnership cases.

The appointment was made in succession to the appointment of a temporary receiver, contained in the order made on September 27, 1910, and it was ordered that the receiver thereby appointed should succeed to all and singular the rights theretofore possessed by said temporary receiver, and should take and be vested with the title to the choses in action, which had theretofore accrued to said temporary receiver in the conduct of the business carried on by it, with power to confirm and ratify such agreements, with reference to the management and control of said assets and property as should have been entered into by said temporary receiver, and to carry out and perform said agreements; the appointment thereby made was to take effect on the filing of an acceptance in writing by the Michigan Trust Company, containing an undertaking on its part for the faithful discharge of the duties of its appointment, and to account for all moneys and effects received by it as such receiver, and such appointment was to continue until the further order or decree of the court.

The creditors of said firm were, by said decree, required to exhibit their demands by filing proofs of their respective claims in the office of the register of the court. It provided that said receiver should, within 10 days from the date thereof, give notice thereof by mail to each creditor of said firm known to said receiver, and within 90 days thereafter should make and file with the court proof of service of such notice; the notices served should require all creditors to prove their debts and claims within 90 days from the date thereof, by a proof of claim to be filed in said register’s office, or, in default thereof, the receiver would proceed to distribute said estate as soon as practicable thereafter, without reference to claims not proved when dividends were paid; notice requiring the creditors of said firm to exhibit their demands by filing proofs thereof in said register’s office within the period aforesaid should also be given by said receiver by publishing such notice once a week for six successive weeks in the Kalamazoo Evening Telegraph.

Said decree also required that a list of said creditors (so far as known to said receiver), should be filed by it, with proof of service of the notice given by mail as aforesaid; that every proof of claim filed as aforesaid should be itemized as sworn to, and should state the actual amount unpaid and owing, the actual consideration- thereof, when the same was contracted, and when the same had or would become due, whether any and what payments had been made thereon, that the sum claimed was justly due from said firm to the claimants, and that the claimant had not, nor had any other person for his use, received any security or satisfaction whatever, other than that by him set forth.

The decree provided that the receiver, or either of the parties to the cause, might contest any claims filed as aforesaid; that every creditor desirous of having a claim filed by any other creditor contested might, by writing, request the receiver to contest such claim, whereupon it should be the duty of said receiver to investigate, and, if in its opinion it was deemed best so to do, such contest might be made in, such manner as should be thereafter determined by the court.

. The receiver was directed to cause an inventory of the property coming to its hands to be made, with an appraisement thereof, by two disinterested appraisers to be chosen by it.

By the decree the parties to the cause, said receiver or any other party in interest, were given leave to apply to the court at any time for any other or further grant of power to the receiver, or for such other or further order respecting the conduct of said receivership, or the properties embraced therein, as circumstances might render advisable.

In compliance with said order the claimant filed proof of his claim, showing balance due on contract for material furnished for normal school building at Kalamazoo; for material furnished for high school building at Chelsea, Mich.; for balance for material furnished for city hall building at Holland; balance for work, labor, and material furnished for Owosso postoffice; balance for work, labor, and material furnished for Masonic temple, Flint, Mich., with interest in each instance; also balance on unpaid note given April 24, 1910, to apply on the Holland city hall contract, and credited as payment thereon, with interest at . 6 per cent. After the proof of claim was filed, various credit items were allowed by claimant, and payments were made to. claimant. At the time of the hearing the amounts due were as follows:

Balance due on Holland city liall contract, with interest thereon from March 1, 1910.. $1,055 84
Balance due on Chelsea high school contract,
with interest thereon from March 1, 1910.. 465 32
Balance due on said unpaid note, with interest due as shown on said note.......... 500 00
Total................................. $2,02116-

The record further shows -that the list of claims filed by creditors shows that on accounts amounting to between $4,000 and $5,000 no interest whatever was claimed; that on other items interest was claimed from various times. One or two items of interest was claimed from 1908. The majority of the items bore interest from 1910. On $16,000 of the claims interest was claimed from 1912. It further appeared that said firm was insolvent, that the receiver, under the direction of the court, has declared and paid a dividend of 20 per cent, to creditors, and that no more than an additional dividend of 20 per cent, will be realized and be available for distribution among creditors.

The objection of the receiver, appellant, to the allowance of the claim of claimant filed in said cause was as follows:

“It objects to the claim of Thomas M. Robinson, who has filed a claim herein for $4,233.03 for the reason that after the appointment of the receiver herein, and with full knowledge thereof, said Thomas M. Robinson recovered a judgment against said copartnership and against the county of Oneida, Wis., for the sum of $2,994.08, on the 1st day of November, 1910, at which time said Thomas M. Robinson was a creditor of said copartnership; that afterwards said Thomas M. Robinson received from said county of Oneida the sum of $2,994.08, due from said county of Oneida to said copartnership, and thereby received a preference over the other creditors, whereby it is inequitable that said Thomas M. Robinson should share in the dividends declared by this estate until the amount of dividends declared and distributed in this estate on the total amount of the claim of said Thomas M. Robinson, including said judgment, should amount to said sum of $2,994.08.”

The matter came on to be heard upon the petition of the receiver, setting forth its objections to various claims of creditors which had been filed, including that of claimant, and asking for an order setting a date of hearing of said claims after due notice to the claimant. Such hearing was finally had on December 28, 1912, and an order was made by the court below allowing the claim of said claimant in full for the whole amount claimed by him against said estate at the sum of $2,021.16, and an order was made February 19, 1913, of which the following is the substance, after entitling the court and cause, to wit:

“In the Matter of the Claim of Thomas M. Robinson and Saginaw Sheet Metal Works.
“After hearing the evidence in support of and against the claim of said claimants, it is hereby ordered, adjudged, and decreed that each of said claimants is entitled to share in any dividends declared, without any deductions being made for payments received by them from said fund under said judgments rendered in Wisconsin; each of said claimants is entitled to and is hereby allowed a solicitor fee of $25 and costs amounting 'to $10 each, in said matter. The amount of the claim of Thomas M. Robinson should be $2,021.16, * * * with interest as shown in the proofs of the respective claimants.”

Later, and on the 17th day of March, 1913, a decree was made and filed in said cause, which contains the following language:

“First. That the amount''ót. the claim of said Thomas M. Robinson herein is fixed" and determined by this court in the sum of $2,021.16, with interest thereon at the rate of 5 per cent, per annum on the sum of $1,055.84 from May 1, 1910, and on the sum of $465.32 from March 1, 1910, and with interest on said unpaid note of $500 at the rate specified in said note from the date thereof.
“Second.. That the Michigan Trust Company, receiver, heretofore appointed in this cause, shall, from the funds in its possession as such receiver, pay to said claimant Thomas M. Robinson a dividend on his claim of equal percentage to that paid other claimants herein whose claims were not contested.
“Third. That the said receiver shall, from the funds now or hereafter coming into its possession as such receiver, pay to said claimant Thomas M. Robinson a dividend on the interest due on his claim equal in percentage to that paid under the second paragraph herein.
“Fourth. That the said receiver shall, from the funds in its possession, or hereafter coming into its possession as such receiver, pay to the said claimant Thomas M. Robinson, a solicitor fee of $25 and costs in the sum of $10.”

Upon the hearing the attorney for claimant was called as a witness by the receiver, and gave certain testimony relating to his information concerning the financial condition of the firm at and before the time suit was begun in Wisconsin. His testimony tended to show that, while a notice had been served upon the Wisconsin attorney representing the claimant, as above set forth, in which it was stated that at and before the commencement of the suits in Wisconsin said firm was insolvent, and had sufficient assets only to pay a- percentage upon the debts of said copartnership, he made investigation and was unable to verify such statement, as the assets and liabilities of the firm at that time were not known, but were by him supposed to be sufficient to pay in full the debts of the copartnership. From which order and decree, so far as they allowed the claim of said Robinson, the receiver has appealed to this court.

By its brief the appellant and receiver claims without conceding the validity of the judgment obtained by claimant in the Wisconsin court, but assuming for the purposes of argument that it was regular, that the claimant is not entitled to the relief he prays, and that he should receive no dividends until the total dividends in said estate would on his claim, including said judgment, exceed $2,994.08. The appellant’s argument, contained in the brief of its solicitors, proceeds upon the following propositions:

(1) The receiver could have enjoined the Michigan creditors from proceeding to judgment in the Wisconsin court; (2) the claimant Robinson is in contempt, and does not come into court with clean hands; (3) as to whether a lien existed under the Wisconsin statute; (4) as to whether a lien on this fund was created by the Wisconsin statute from the fact of its being in the nature of a garnishment; (5) substituted service; (6) the rule of comity is subject to the rule that the courts of each State will first protect the citizens of that State, as against residents of another State.

It is the claim of appellant that, by virtue of its appointment as receiver, it was vested with the right, as against all the creditors of the firm of George Rickman Sons’ Company, resident of the State of Michigan, to take possession of and administer, under the direction of the court, all the assets and property of that firm located in the State of Michigan, or elsewhere, except as against the rights and equities of creditors resident in States other than Michigan, in which, the same might be situated. It is a significant fact that should not be lost sight of that no bankruptcy proceedings have ever been instituted against said firm; that as early as the 25th day of August, 1910, suit had been commenced by the claimant against said firm and Oneida county in the circuit court of Oneida county, State of Wisconsin, and that service was had on that day upon Arthur W. Rickman and Oneida county.

If it shall turn out that the commencement of this suit operated as a garnishment of the fund in Wisconsin, and that such garnishment operated as a lien in favor of the claimant upon that fund, then we do not think the authorities cited by appellant upon this proposition are applicable here. The Michigan cases cited by counsel, of Butler v. Wendell, 57 Mich. 62 (23 N. W. 460, 58 Am. Rep. 329), and Cohen v. Order of the Iron flaB/105 Mich. 283 (63 N. W. 304), are readily distinguished from the instant case, in the event that claimant, by the above-mentioned proceedings, obtained a lien upon the fund in Wisconsin.

Counsel also call attention to the case of Gilman v. Ketcham, 84 Wis. 60 (54 N. W. 395, 23 L. R. A. 52, 36 Am. St. Rep. 899). That case is readily distinguished from the instant case for many reasons. In that case there was a voluntary proceeding for the dissolution of a corporation of another State, and a receiver had been appointed by a court of that State, and the creditors had been enjoined from prosecuting actions against the corporation. The Wisconsin court said:

“The situation, in brief, is that after the plaintiff had been enjoined, by a competent court of the jurisdiction in which he resided, from bringing any action against the corporation, * * * and after an adjudication absolutely dissolving the corporation had been made, and after the title to its property, effects, and credit had been vested in the claimant as such receiver, the plaintiff came into the circuit court of this State, and commenced an action to recover his demand against a dissolved corporation.”

We are dealing here with a case in which the claimant had commenced his suit more than a month before the bill of complaint was filed in this cause. It should be noted that the bill of complaint was filed to dissolve a copartnership and for an accounting, and not to wind up a corporation; also that no injunction had been issued, or action taken by the receiver to interfere with the progress of the suit in the State of Wisconsin. The claimant had in no way been made a party to the chancery suit commenced in the Kalamazoo circuit. So far as the record shows, at that time the copartnership was supposed to be solvent, and there seems to have been no reason why the claimant might not proceed to enforce his lien in the State of Wisconsin upon the money there'intended for the payment of the claims. Under such circumstances, we do not believe the receiver could have enjoined the Michigan creditors from proceeding to judgment in the Wisconsin court. Merchants & Manufacturers Nat. Bank v. Kent Circuit Judge, 43 Mich. 292-297 (5 N. W. 627); Baldwin v. Wayne Circuit Judge, 101 Mich. 119-134 (59 N. W. 432); Baldwin v. Wayne Circuit Judge, 101 Mich. 432 (59 N. W. 669).

An injunction should not issue at the suit of a receiver to enjoin a creditor, who has garnished funds of the corporation, from proceeding with his suit.

If claimant had obtained a valid lien on the fund, it was not dissolved by the filing of the bill and the appointment of a receiver, but may be enforced.

It will be noted, also, that there were a number of suits pending in the Wisconsin court, including Michigan, Illinois, and Wisconsin creditors. The result of an injunction would have been to deprive the Michigan creditor of his remedy and lien there, leaving the field open for the Illinois and Wisconsin creditors to

exhaust the fund, for, as it turned out, the fund was not large enough to pay all of the claims in full, but the judgments were paid in the order in which the suits were begun. Under such circumstances an injunction would not have been issued. Washington Lodge v. Frelinghuysen, 138 Mich. 350-355 (101 N. W. 569) ; Campau v. Film Co., 159 Mich. 169-172 (123 N. W. 606).

It seems to us that the receiver bases its entire theory on the assumption that it made no difference whether the suits in Wisconsin were begun prior to the appointment of the receiver, or subsequently. We think there is a marked difference, and that a different rule should be applied. This court has held that, after the appointment of a receiver for an insolvent, the right of a creditor to sequester property by attachment, and thus gain priority, is suspended. Butler v. Wendell, 57 Mich. 62 (23 N. W. 460, 58 Am. Rep. 329). There the assignment was made prior to the commencement of the garnishee proceedings, and was valid in the State where made. See, also, Cohen v. Order of the Iron Hall, 105 Mich. 283 (63 N. W. 304). There the receiver was appointed in Indiana, and on the same day suit was commenced in Michigan and an ancillary writ of garnishment was issued. This court said, at page 288 (63 N. W. 306):

“If it be conceded that the prior appointment of a receiver by the Indiana court would have relegated plaintiff to that court, it does not appear, under either rule, that such appointment preceded the commencement of the present suit. We are of the opinion that under the rule laid down in Granger v. Circuit Judge, 27 Mich. 406 [15 Am. Rep. 195], the pendency of the proceedings in the Indiana court did not deprive plaintiff of his remedy at law.”

We do not agree with appellant’s contention that claimant Robinson was in contempt of court in proceeding to take his judgment in the Wisconsin court. At that time it did not appear that the copartnership was insolvent, nor had any legal steps been taken to invoke bankruptcy proceedings, or to restrain claimant from proceeding to enforce his lien.

This court held in Baldwin v. Wayne Circuit Judge, 101 Mich. 119-134 (59 N. W. 432), that proceedings for contempt are not appropriate for the trial of issues involving a right to a fund as between receiver and a garnishee of the fund. See, also, Alderson on Receivers, §§ 211-219.

The case of Campau v. Driving Club, 130 Mich. 417 (90 N. W. 49), is readily distinguished from the instant case.

The third and fourth propositions may well be considered together. We agree with the contention of the claimant that the commencement of the suits in Wisconsin by the four subcontractors gave each a lien on the fund then owing by the county to the copartnership, with priority of payment in the order of time when such suit was begun. Thus the supreme court of Wisconsin has interpreted the statute which we have already quoted, and has held that the action under this law is equivalent to a garnishment proceeding. We think that the commencement of such actions gave the plaintiffs therein priority over subcontractors and creditors of the principal contractor who might begin their actions later. James v. Davidson, 81 Wis. 321 (51 N. W. 565). In the case last cited that court said:

“These actions, under section 3328, Revised Statutes, are the equivalents of garnishee actions brought by the same creditors of Russell v. County” —citing Klaus v. Green Bay, 34 Wis. 628, and continuing :
“The commencement of each such action gave the plaintiff therein priority over subcontractors and creditors of Russell who commenced their actions later. This plaintiff, being the first to bring an action, is entitled to be first paid out of the moneys* adjudged to have been due Russell from the county when the action was commenced.”

In the suits of the four claimants in Wisconsin the Oneida circuit court carried out the same principle. The amount impounded was not sufficient to pay the claims of all four creditors who had filed suits. The judgments of these four creditors were paid in the order of time in which these suits were filed, and the Scott-Taylor Company, a Wisconsin corporation, being the last claimant to file suit, did not receive payment of its judgment in full from the partnership assets so impounded. The judgments not only established the fact that each claimant had a lien, with priority of payment in the order in which the suits were begun, but also that foreign creditors who commenced suit prior to the Wisconsin creditors were entitled to payment from the fund, even to the depletion of the fund, so that the local Wisconsin creditor did not receive payment of its judgment in full.

It is urged by appellant that the language of the statute is permissive only, in that it is said, “that a court may render judgment.” The Wisconsin courts have held that the exercise of the statutory power which is permissive only in form is jiot discretionary where public interests or individual rights call for its exercise. Brawley v. Mitchell, 92 Wis. 671 (66 N. W. 799), citing many cases. This is also the general rule. See 2 Lewis’ Sutherland Statutory Construction (2d Ed.), § 636, pp. 1149, 1150. This court should follow the construction placed upon these statutes by the Wisconsin courts. Id., vol. 1, § 13, p. 22; 36 Cyc. p. 1104; Black on Interpretation of Laws, § 145, p. 381.

It should be remembered that in this case a bill was filed by one copartner for the dissolution of the partnership and an accounting from the other co-partners. By consent a temporary receiver was appointed to carry on the business of the copartnership until the cause could be heard. Such receiver was not entitled to possession of the fund impounded, over a month before, by the suits commenced in Wisconsin. High on Receivers (4th Ed.), § 539, p. 704; Weber v. Weber, 90 Wis. 467 (63 N. W. 757).

“The receiver of a partnership takes only its rights, and consequently is affected by all claims, liens and equities which would prevail against the partnership if it were asserting its interest in the property.” Alderson on Receivers (1905), p. 223.

The receiver takes only such title as the partnership had, subject to all valid or existing liens thereon. Alderson on Receivers (1905), p. 658.

Claimant having obtained a lien on the fund, the receiver is not entitled to possession of the same. Baldwin v. Wayne Circuit Judge, supra; Brownson v. Roy, 133 Mich. 617 (95 N. W. 710).

The doctrine is well stated in 23 Am. & Eng. Enc. Law (2d Ed.), pp. 1091-93, as follows:

“The appointment of a receiver for property does not affect pre-existing liens upon the property, or vested rights or interests of third persons therein. * * * A receiver, it is held, succeeds to only such right, title, and interest in the property as the individual or corporation for which he is appointed receiver had at the time the appointment was made. The receiver takes his title to the property subject to all the equities to which it was subject in the hands of the debtor” — citing many cases.

Where property of the debtor is subject to a lien prior to the time of commencement of receivership proceedings and appointment of receiver over all of debtor’s property, the receiver is not entitled to possession of the property, and the lienor can enforce his lien as against the property.

An abundance of authority may be cited in support of this doctrine outside of this State. We have already cited sufficient authority upon the subject.

That the lien attached on the filing of the suits in Wisconsin there can be no question under the authorities which we have cited. The receiver in Michigan was appointed subsequent to the commencement of the Wisconsin suits, but prior to the time of judgment. Under such circumstances the plaintiffs in the Wisconsin suits were entitled to proceed with these suits and hold the fund' subject to their liens. The money impounded in Wisconsin may be said to have been a fund for the satisfaction of such liens. Baldwin v. Wayne Circuit Judge, supra. The same rule is laid down in the case of Ross v. Titsworth, 37 N. J. Eq. 333.

It will be noted that in the case we are considering the court below did not make a decree dissolving the copartnership and ordering creditors to file their claims until January 20, 1911. In the meantime claimant’s Wisconsin judgment had been paid. Until this decree was entered it cannot be said that the claimant was in any sense a party to the litigation, or affected by it in so far as the proceedings in Wisconsin were concerned.

.The doctrine of the Wisconsin court that the service of garnishee process creates a lien upon the property of the principal defendant in the hands of the garnishee defendant, entitling the plaintiff to hold such property for the satisfaction of his claim, is the general doctrine. In addition to the cases already cited, we'may cite that of Bethel v. Judge of Superior Court, 57 Mich. 379 (24 N. W. 112) ; 20 Cyc. p. 1063; Rood on Garnishment, §§ 180, 192, 193, 194.

Substituted Service. The receiver contends that as personal service was had on only one of the copartners in Wisconsin, and no service was had on the other copartners, the judgment obtained in Wisconsin against the copartnership property will not be recognized. It should be borne in mind that the claimant in these proceedings is not seeking to enforce his Wisconsin judgment against any partnership assets in Michigan, or against the separate property of any of the copartners not served. The Wisconsin judgment was satisfied out of the funds impounded there. The only use made of such judgment in this proceeding is to establish the fact that claimant had, through suit, secured a valid lien on the fund in Wisconsin, out of which fund his judgment was paid. His claim filed in this suit is on entirely different matters arising out of construction work done by him as subcontractor of various contracts in Michigan. The Wisconsin statute which we have quoted, being section 2884, is substantially like our sections 10371-10374, 3 Comp. Laws. It has been held that where one of several copartners has been served with process, the copartnership property is liable. Gunzberg v. Miller, 39 Mich. 80; Smith v. Runnells, 94 Mich. 617 (54 N. W. 375).

Claimant was proceeding to impound the partnership funds in Wisconsin. There is no question that under the laws of that State, the Wisconsin court had jurisdiction to render the judgments against the fund which it did render, and, therefore, the receiver representing the partnership is in no better position than the partnership would be to contest the validity of such judgments. We think the judgment in that court is conclusive upon the parties to the action and their privies. Mitchell v. Chambers, 43 Mich. 150 (5 N. W. 57, 38 Am. Rep. 167) ; Eureka Iron & Steel Works v. Bresnahan, 66 Mich. 489 (33 N. W. 834) ; Dunlap v. Byers, 110 Mich. 109 (67 N. W. 1067) ; Spiker v. Relief Society, 140 Mich. 225 (103 N. W. 611, 104 N. W. 670).

We do not think that the comity rule is involved in this case. We have, in our opinion, said enough to dispose of the case.

We find no error in the order and decree of the lower court, and the same are affirmed, with costs to the claimant.

McAlvay, C. J., and Brooke, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.