779.155(4)
(4) Same; funds due public contractors. When the state or a municipality is indebted to a contractor for public improvements, payment shall not be made to the judgment creditor until 3 months after final completion and acceptance of the public work and then only out of moneys due the contractor in excess of unpaid lienable claims having priority under
s. 779.15.
779.155(5)(a)(a) For the purpose of administering this section, sworn statements of the contractor setting forth the unpaid lien claims filed or filable under
s. 779.15 may be accepted by the proper officer, board, department or commission, unless the judgment creditor or other interested person gives written notice that an action is pending to determine whether specified lien claims were incurred in performing the public work and the amount thereof, or to determine priorities in which event payments shall await the result of the action.
779.155(5)(b)
(b) Within 10 days after filing the certified copy of the judgment under
sub. (2), the contractor shall file the sworn statement in duplicate, with the proper officer, board, department or commission, who shall immediately furnish the judgment creditor with one of the statements. The judgment creditor shall have 10 days from the receipt thereof in which to serve the notice of pendency of the court action.
779.155(6)
(6) Payments to judgment creditor. After the expiration of the 3-month period, the moneys due the contractor in excess of unpaid lienable expenses and claims incurred in performing the public work shall be paid to the judgment creditor, but not exceeding the amount due on the judgment.
779.155(7)
(7) Priority of judgments over assignments. Any judgment filed under this section has priority over an assignment made by the contractor after the commencement of the action in which the judgment was obtained.
779.155 History
History: 1971 c. 154; Sup. Ct. Order, 67 W (2d) 585, 775 (1975);
1975 c. 218;
1979 c. 32 ss.
57,
92 (9);
1979 c. 176; Stats. 1979 s. 779.155;
1993 a. 80,
399,
486.
779.16
779.16
Theft by contractors. All moneys, bonds or warrants paid or to become due to any prime contractor or subcontractor for public improvements are a trust fund only in the hands of the prime contractor or subcontractor and shall not be a trust fund in the hands of any other person. The use of the moneys by the prime contractor or subcontractor for any purpose other than the payment of claims on such public improvement, before the claims have been satisfied, constitutes theft by the prime contractor or subcontractor and is punishable under
s. 943.20. This section shall not create a civil cause of action against any person other than the prime contractor or subcontractor to whom such moneys are paid or become due. Until all claims are paid in full, have matured by notice and filing or have expired, such money, bonds and warrants shall not be subject to garnishment, execution, levy or attachment.
779.16 History
History: 1973 c. 231;
1975 c. 409;
1979 c. 32 s.
57; Stats. 1979 s. 779.16.
779.16 Annotation
Fiduciary relationship exists between prime contractor and subcontractor when prime contractor has received payment for public improvement. Loehrke v. Wanta Builders, 151 W (2d) 695, 445 NW (2d) 717 (Ct. App. 1989).
779.16 Annotation
Misappropriation of funds under this section was debt nondischargeable in bankruptcy. Matter of Thomas, 729 F (2d) 502 (1984).
779.17
779.17
Release of funds on filing bond. At any time after the service of a notice of lien claim or filing of judgment or pending the determination of any action commenced thereunder, the contractor shall be entitled to the release of any moneys due the contractor under the contract upon filing a bond, executed by a surety company duly authorized to transact business in this state, with the public authority having jurisdiction over the work, guaranteeing that the contractor will pay any judgment of the court rendered in favor of the lien claimant and all judgments filed. Such bond shall be in an amount sufficient to insure payment of the lien claims and judgments, and shall be approved as to form and amount by the public authority.
779.17 History
History: 1979 c. 32 s.
57;
1979 c. 176; Stats. 1979 s. 779.17.
OTHER LIENS
779.18
779.18
Log liens; priority. 779.18(1)(1) Any person who, personally or by a beast or machine or vehicle, performs any services in cutting, hauling, running, felling, piling, driving, rafting, booming, cribbing, towing, sawing, peeling, kiln drying or manufacturing logs, timber, stave bolts, heading staves, pulp wood, cordwood, firewood, railroad ties, piling, telegraph poles, telephone poles, fence posts, paving timber, tan or other barks or in preparing wood for or manufacturing charcoal shall have a lien upon the material for the amount owing for the services, which shall take precedence of all other claims, liens or encumbrances thereon or sales thereof.
779.18(2)
(2) The right of lien given by this section survives any change in the property through manufacture and the lienor has a lien upon the manufactured product as though the services had been performed directly thereon.
779.18 History
History: 1979 c. 32 s.
57;
1979 c. 176; Stats. 1979 s. 779.18;
1981 c. 370.
779.19
779.19
Petition for log lien; filing same. No demand for the services may become a lien unless a petition therefor is signed and verified by the claimant or by someone in the claimant's behalf setting forth the nature of the demand, the amount claimed, a description of the property upon which the lien is claimed and that the petitioner claims a lien thereon. The petition shall be filed in the office of the clerk of the circuit court of the county in which the services or some part thereof were performed within 3 months after the last day of performing continuous services, and the services shall be deemed continuous notwithstanding a change of ownership in the property on which the lien is claimed. The clerk shall receive the fee prescribed in
s. 814.61 (5) for filing the petition.
779.19 History
History: 1979 c. 32 s.
57;
1979 c. 176; Stats. 1979 s. 779.19;
1981 c. 317.
779.20
779.20
Action to enforce log lien; parties; costs; change of venue. 779.20(1)(1) An action to enforce any lien under
s. 779.18 may be brought in the circuit court of the county where the petition is filed. This claim shall cease to be a lien unless an action to foreclose it is commenced within 4 months after filing the petition. If the claim is not due at the time of filing the petition the time when the claim will become due shall be stated in the petition, and in this case the claim shall not cease to be a lien until 30 days after the claim has become due and until 4 months after the filing of the petition.
779.20(2)
(2) Where the property subject to such lien has been taken from the county where such work was done the lienor may bring an action to foreclose the lien in any county where said property may be found. In all foreclosure actions the person liable for such claim shall be made defendant and any other person claiming to own or have any interest in such property may be made a defendant, but shall not be liable for costs unless defending the action. In actions appealed from municipal court no change of venue shall be allowed except for prejudice of the judge or of the people.
779.20 History
History: 1977 c. 449;
1979 c. 32 ss.
57,
92 (9);
1979 c. 176; Stats. 1979 s. 779.20.
779.21
779.21
Attachment, affidavit for; undertaking; service of writ. 779.21(1)(1) The plaintiff in this action may have remedy by attachment of the property upon which the lien is claimed as in personal actions; this attachment may be issued, served and returned and like proceedings had thereon including the release of any attached property as in personal actions. The affidavit for the attachment must state that the defendant who is personally liable is indebted to the plaintiff in the sum named, above all setoffs, for services which entitle the plaintiff to a lien, describe the property on which it is claimed that the services were performed and that the plaintiff has filed the petition for a lien pursuant to law. No other fact need be stated. No order may be made by any court or any judge thereof requiring an undertaking or security for costs except upon 10 days' notice to the plaintiff.
779.21(2)
(2) The writ of attachment shall direct the officer to attach the property described or so much thereof as shall be necessary to satisfy the sum claimed to be due and to hold the same subject to further proceedings in the action. The officer shall make return but it shall not be necessary for the officer to make an inventory or appraisal of the property attached; the officer shall pay any charges that may be due for booming or driving the property attached, and the amount paid shall be taxed as costs. Where personal service of the summons and writ of attachment cannot be made service shall be made as provided for service of summons on nonresidents or persons who cannot be found as in other actions.
779.21 History
History: 1977 c. 449;
1979 c. 32 s.
57;
1979 c. 176; Stats. 1979 s. 779.21.
779.24
779.24
Lien for camp supplies. All persons furnishing supplies necessary for the performing of the labor and services upon any property mentioned in
s. 779.18, at the request of the person engaging such labor or services, shall have the right of lien therefor and may enforce the same by action as herein provided for the enforcement of liens upon logs and timber.
779.24 History
History: 1979 c. 32 ss.
57,
92 (9); Stats. 1979 s. 779.24.
779.25
779.25
Lien for joint log driving. When logs or timber of different owners are so intermixed that they cannot be conveniently separated for driving and either owner neglects to make the necessary provision for driving them any other owner may drive all such logs or timber to the destination and shall receive reasonable compensation for driving the logs of the owner so neglecting and shall have a lien for such compensation and may enforce the same as provided for the enforcement of liens upon logs or timber.
779.25 History
History: 1979 c. 32 s.
57; Stats. 1979 s. 779.25.
779.26
779.26
Lien of improvement companies. Every company whose charter authorizes it to collect tolls on logs, lumber or timber shall have a lien thereon, with the remedies herein given to enforce liens for labor and services in respect to logs or timber.
779.26 History
History: 1979 c. 32 s.
57; Stats. 1979 s. 779.26.
779.28
779.28
Execution. In actions to enforce liens on property mentioned in
s. 779.18 the execution, in addition to the directions of ordinary executions upon judgments for money, shall direct that the property upon which a lien is found to exist or so much thereof as may be necessary for such purpose be sold to satisfy the judgment.
779.28 History
History: 1979 c. 32 ss.
57,
92 (9); Stats. 1979 s. 779.28.
779.29
779.29
Intervention. In an action for the enforcement of a lien upon property under
s. 779.18 a person not a party may, at any time before sale of the property upon which a lien is claimed, become a party defendant by filing with the clerk of the court where the action is pending an affidavit made in behalf of or by the person that the person is the owner of or of some interest in the property upon which a lien is claimed and believes that the claim for lien is invalid. Upon filing this affidavit the person may defend this action so far as a claim for a lien is concerned. If judgment has been previously rendered for a lien, the person may move the court for relief from the judgment within 20 days after the filing of the affidavit. The right to file an affidavit shall not extend beyond one year from the rendition of the judgment.
779.29 History
History: 1979 c. 32 ss.
57,
92 (9);
1979 c. 176; Stats. 1979 s. 779.29;
1983 a. 219.
779.29 Note
Judicial Council Note, 1983: This section is amended by repealing an appeal procedure and substituting the right to move the trial court for relief from its judgment. [Bill 151-S]
779.30
779.30
Undertaking by intervenor; procedure. The filing of an affidavit under
s. 779.29 shall not stay execution unless the intervenor files an undertaking, with 2 or more sureties, who shall each justify in a sum equal to double the amount of the judgment, conditioned that if the plaintiff establishes the right to a lien on the property they will pay the amount of judgment in the plaintiff's favor with costs; the undertaking shall be approved by the judge of the court; and upon filing it all proceedings upon the judgment shall be stayed during the pendency of the proceedings. If execution has been previously issued the same shall, upon presenting to the officer in whose custody it may be a certified copy of the affidavit and undertaking, be returned, and all property in which the intervenor claims an interest that may have been levied upon shall be released from the levy. If upon the trial the plaintiff recovers judgment of lien upon this property the judgment may be entered against the intervenor and sureties; but if the plaintiff does not establish the right to a lien the intervenor shall recover judgment for costs.
779.30 History
History: 1979 c. 32 ss.
57,
92 (9);
1979 c. 176; Stats. 1979 s. 779.30;
1983 a. 219.
779.31
779.31
Cook's lien. The person who prepares or serves the food for persons while they are performing lienable services upon any property mentioned in
s. 779.18, at the request of their employer shall have the right of lien therefor the same as those persons.
779.31 History
History: 1975 c. 94 s.
91 (9);
1979 c. 32 ss.
57,
92 (9); Stats. 1979 s. 779.31.
MINING LIENS, ETC.
779.35
779.35
Mining liens. Any person who shall perform any labor or services for any person or corporation engaged in or organized for the purpose of mining, smelting or manufacturing iron, copper, silver or other ores or minerals, and any bona fide holder of any draft, time check or order for the payment of money due for any such labor, issued or drawn by any such person or corporation, shall have a lien for the wages due for the amount due on such draft, check or order upon all the personal property connected with such mining, smelting or manufacturing industry belonging to such person or corporation, including the ores or products of such mine or manufactory, together with the machinery and other personal property used in the operation of such mine or manufactory and all the interest of such person or corporation in any real estate belonging thereto and connected with such business, which said lien shall take precedence of all other debts, judgments, decrees, liens or mortgages against such person or corporation, except liens accruing for taxes, fines or penalties and liens under
ss. 292.31 (8) (i),
292.41 (6) (d) and
292.81, subject to the exceptions and limitations hereinafter set forth.
779.35 History
History: 1979 c. 32 s.
57;
1979 c. 176; Stats. 1979 s. 779.35;
1993 a. 453;
1995 a. 227.
779.36
779.36
Extent of lien; filing claim. The lien under
s. 779.35 extends only to the amount of the interest in the real property held by the employer, and in case of the employer's death or insolvency, or of the sale or transfer of the works, mines, manufactories or business, or the employer's interest therein by execution or otherwise, all moneys that may be due for wages to any miner, mechanic or laborer shall be a lien upon all said property and shall be preferred and first paid out of the proceeds of the sale thereof; provided, that no such claim shall be a lien upon any real estate unless it shall be filed in the office of the clerk of the circuit court of the county in which the real estate upon which a lien is claimed is situated within sixty days after the claim, draft, time check or order is due and payable in the manner claims for mechanics' liens are required to be filed.
779.36 History
History: 1979 c. 32 s.
57;
1979 c. 176; Stats. 1979 s. 779.36.
779.37
779.37
Satisfaction of lien. If an attachment, execution or similar writ shall be issued against any person or corporation engaged in a business as is within
s. 779.35, any miner, laborer, mechanic or other person who is entitled to claim a lien thereon may give notice in writing of the lien claim and the amount thereof, verified by affidavit, to the officer holding the writ at any time before the actual sale of the property affected thereby, and the officer shall retain out of the proceeds of the sale a sufficient sum to satisfy all such claims, which sum shall be held by the officer, subject to such order as the court may make.
779.37 History
History: 1979 c. 32 ss.
57,
92 (9); Stats. 1979 s. 779.37;
1993 a. 486.
779.38
779.38
Effect of mortgage. No mortgage or other instrument by which a lien is created shall operate to impair or postpone the lien and preference given and secured to the wages and moneys mentioned in
s. 779.35; provided, that no lien of any mortgage or judgment entered before such labor is performed shall be affected or impaired by such lien.
779.38 History
History: 1979 c. 32 ss.
57,
92 (9); Stats. 1979 s. 779.38.
779.39
779.39
Foreclosure of lien. The liens and preferences given by
ss. 779.35 to
779.38 may be foreclosed in the same manner as mechanics' liens, and all provisions of these statutes relating to the foreclosure thereof shall apply to the foreclosure of the liens so given, so far as such provisions are applicable.
779.39 History
History: 1979 c. 32 ss.
57,
92 (9); Stats. 1979 s. 779.39.
779.40
779.40
Liens for labor in quarry. 779.40(1)
(1) Any person who shall perform any labor for an employer not the owner of the real estate, engaged in quarrying, crushing, cutting or otherwise preparing stone for use or for manufacturing lime and any bona fide holder of any draft, time check or order for the payment of money due for any such labor issued by such employer, shall have a lien for wages owed and for the amount due on such draft, check or order upon the personal property connected with such industry owned by such employer, including interest in the product of such quarry or factory and machinery and other personal property used in the operation of such quarry or factory, and all interest in any lease of the real estate connected with such business, which lien shall take precedence of all other debts, judgments, decrees, liens or mortgages against such employer, except taxes, fines or penalties and mortgages or judgments recorded or entered before such labor is performed and except liens under
ss. 292.31 (8) (i), [144.77] 292.41 (6) (d) and 292.81.
779.40 Note
NOTE: Sub. (1) is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c). The bracketed language was inserted by
1995 Wis. Act 225, but was rendered superfluous by the treatment of this provision by
1995 Wis. Act 227. Corrective legislation is pending.
779.40(2)
(2) The wages shall become a lien upon the property and material mentioned in this section upon filing with the clerk of the circuit court of the county in which the labor is performed within 60 days after the first of the services shall be rendered, a petition signed by the claimant and verified in behalf of or by the claimant under oath, setting forth the nature of the debt for which the lien is claimed, the amount claimed, a description of the property upon which the lien is claimed and that the petitioner claims a lien thereon pursuant to law. The clerk shall receive the fee prescribed in
s. 814.61 (5) for filing the petition.
779.40(3)
(3) The provisions of
ss. 779.20 and
779.21 shall govern the foreclosure of the liens here given so far as such provisions are applicable.
779.40 History
History: 1979 c. 32 ss.
57,
92 (9);
1979 c. 176; Stats. 1979 s. 779.40;
1981 c. 317;
1993 a. 453;
1995 a. 225,
227; s. 13.93 (2) (c).
MECHANIC'S LIENS, ETC.
779.41
779.41
Mechanic's liens. 779.41(1)(1) Every mechanic and every keeper of a garage or shop, and every employer of a mechanic who transports, makes, alters, repairs or does any work on personal property at the request of the owner or legal possessor of the personal property, has a lien on the personal property for the just and reasonable charges therefor, including any parts, accessories, materials or supplies furnished in connection therewith and may retain possession of the personal property until the charges are paid. The lien provided by this section is subject to the lien of any security interest in the property which is perfected as provided by law prior to the commencement of the work for which a lien is claimed unless the work was done with the express consent of the holder of the security interest, but only for charges in excess of $1,500 except if the personal property is:
779.41(1)(a)
(a) A trailer or semitrailer designed for use with a road tractor, for charges in excess of $4,500.
779.41(1)(b)
(b) Road machinery, including mobile cranes and trench hoes, farm tractors, machines of husbandry, or off-highway construction vehicles and equipment, for charges in excess of $7,500.
779.41(1)(c)
(c) A motor vehicle not included under
par. (a) or
(b) with a manufacturer's gross weight rating, including, with respect to road tractors, a manufacturer's gross weight rating for the combined carrying capacity of the tractor and trailer, of:
779.41(1)(c)1.
1. More than 10,000 and less than 20,000 pounds, for charges in excess of $3,000.
779.41(1)(c)2.
2. 20,000 pounds or more but less than 40,000 pounds, for charges in excess of $6,000.
779.41(1)(c)3.
3. 40,000 pounds or more but less than 60,000 pounds, for charges in excess of $9,000.
779.41(1)(c)4.
4. 60,000 pounds or more, for charges in excess of $12,000.
779.41(1m)
(1m) Annually, on January 1, the department of agriculture, trade and consumer protection shall adjust the dollar amounts identified under
sub. (1) (intro.),
(a),
(b) and
(c) 1. to
4. by the annual change in the consumer price index, as determined under
s. 16.004 (8) (e) 1., and publish the adjusted figures.
779.41 Note
NOTE: The department will publish the adjusted mechanic's lien limits in the December 31st issue of the Wisconsin Administrative Register.
779.41(1s)(a)(a) Subsection (1), as it applies to a mechanic, mechanic's employer or keeper of a garage or shop, applies to a boat mechanic, boat mechanic's employer, person who tows a boat or keeper of a marina or shop at which boats are repaired, except as follows:
779.41(1s)(a)1.
1. The lien provided by this subsection is subject to the lien of any security interest in the boat that is perfected as provided by law prior to the commencement of the work for which the lien is claimed unless the work was done with the express consent of the holder of the security interest, but only for charges in excess of $1,200.
779.41(1s)(a)2.
2. Within 30 days after the charges for the work become past due, the person claiming a lien under this subsection shall send written notice to the owner of the boat and the holder of the senior lien on the boat informing them that they must take steps to obtain the release of the boat. To reclaim the boat, the owner or the senior lienholder must pay all charges that have a priority over other security interests under this subsection and all reasonable storage charges on the boat that have accrued after 60 days from the date that the charges for the work became past due. A reasonable effort to notify the owner and the holder of the senior lien satisfies the notice requirement under this subdivision. Failure to make a reasonable effort to notify the owner and the senior lienholder renders void any lien to which the person may be entitled under this subsection.
779.41(1s)(b)
(b) A lien under this subsection is in addition to any remedy available under
ch. 780.
779.41 Note
NOTE: Sub. (1s) was created as s. 779.41 (1m) by
1995 Wis. Act 331 and renumbered by the revisor under s. 13.93 (1) (b).
779.41(2)
(2) Every keeper of a garage or repair shop who alters, repairs or does any work on any detached accessory, fitting or part of an automobile, truck, motorcycle, moped, motor bicycle or similar motor vehicle or bicycle at the request of the owner or legal possessor thereof, shall have a lien upon and may retain possession of any such accessory, fitting or part until the charges for such alteration, repairing or other work have been paid. If the detached article becomes attached to such motor vehicle or bicycle while in the possession of the keeper, the keeper has a lien on the motor vehicle or bicycle under
sub. (1).
779.41(3)
(3) Insofar as the possessory right and lien of the person performing labor and services under this section are released, relinquished and lost by the removal of property upon which a lien has accrued, it is prima facie evidence of intent to defraud if upon the removal of such property, the person removing the property issues any check or other order for the payment of money in payment of the indebtedness secured by the lien, and thereafter stops payment on the check or order. This subsection does not apply when a check is stopped because the product is improperly repaired or improperly serviced and the product has been returned to the person performing the labor or services for proper repair or service.
779.41 History
History: 1971 c. 333;
1979 c. 32 s.
57;
1979 c. 176,
252; Stats. 1979 s. 779.41;
1983 a. 243;
1987 a. 399;
1995 a. 107,
331; s. 13.93 (1) (b).
779.41 Cross-reference
Cross-reference: See s.
779.48 (2) for method of enforcing a mechanics' lien.
779.41 Annotation
Where a garageman did not obtain the consent of the lienholder to the repairs, his lien is limited to the statutory amount and he cannot claim more under a theory of unjust enrichment. Industrial Credit Co. v. Inland G. M. Diesel, 51 W (2d) 520, 187 NW (2d) 157.
779.41 Annotation
Upon a conditional release of personal property by the lienor the lien is enforceable against all parties except a bona fide purchaser for value or a subsequent levying creditor with no notice of the lien. M&I Western State Bank v. Wilson, 172 W (2d) 357, 493 NW (2d) 387 (Ct. App. 1992).
779.41 Annotation
The legislature did not create a crime or invoke criminal penalties in enacting (3) which renders stopping payment on a check used to pay for certain repairs to personal property "prima facie evidence of intent to defraud." This section could operate to establish prima facie evidence of only one of the elements of the crime of theft defined in 943.20 (1) (d). 63 Atty. Gen. 81.
779.415
779.415
Liens on motor vehicles for towing and storage.
