119 U.S. 388 (1886), Johnson v. Chicago & P. Elevator Co.

Citation:119 U.S. 388, 7 S.Ct. 254, 30 L.Ed. 447
Case Date:December 13, 1886
Court:United States Supreme Court

Page 388

119 U.S. 388 (1886)

7 S.Ct. 254, 30 L.Ed. 447

JOHNSON and others



United States Supreme Court.

December 13, 1886

In Error to the Supreme Court of the State of Illinois.

Attachment suit. Judgment for plaintiff. Appeal by defendant and others.


[7 S.Ct. 254] H. W. Magee, for plaintiffs in error.

Robert Rae, for defendant in error.



Page 389

On the twenty-second of September, 1881, the Chicago & Pacific Elevator Company, an Illinois corporation, filed a petition in the circuit court of Cook county, Illinois, setting forth that, on the twenty-ninth of August, 1881, it was the proprietor of a warehouse on the land, in Cook county, near the bank of the Chicago river, which had stored in it a quantity of shelled corn; that on that day Jacob Johnson, a resident of Chicago, in said county, was the owner of the tug-boat Parker, of above five tons burden, used and intended to be used in navigating the waters and the canals of Illinois, and having its home port in Illinois; that the Parker, on that day, was towing a schooner, attached to her by a hawser, in the Chicago river, in said county, the schooner being under the control of the officers of the tug; and that the tug and the schooner were so negligently managed, and the schooner was so negligently towed by those having control of the tug, that the jibboom of the schooner went through the wall of the warehouse, whereby a large quantity of the corn ran out and was lost in the river, causing a damage of $394.38 to the petitioner. The petition prayed for a writ of attachment against Johnson, to be issued to the sheriff, commanding him to attach the tug, and to summon

Page 390

the defendant to appear, and for a decree subjecting the tug to a lien for such damages.

On the giving of the required bond on behalf of the petitioner, a writ of atachment was issued on the same day to the sheriff, commanding him to attach [7 S.Ct. 255] the tug, and to summon Johnson to appear on the seventeenth of October. The return of the sheriff stated that he had attached all the right, title, and interest of Johnson in and to the tug, and had served the writ on Johnson, personally, on the same day. A bond was given on the same day, executed by Johnson, as owner of the tug, as principal, and Henry A. Christy, as surety, conditioned to pay all money which should be adjudged by the court in the suit to be due to the petitioner. Thereupon a writ was issued to the sheriff, commanding him to return the attached property to Johnson, which was done

On the seventeenth of October, Johnson filed a paper called a 'demurrer and exceptions,' setting up, among other things, that the court had no jurisdiction to create or enforce a lien on the tug. On the twenty-first of October the plaintiff entered a motion that the default of the defendant be taken for want of an affidavit of merits. On October 31st, after the denial of a motion by the defendant for leave to file an affidavit of merits, the court entered of record the default of the defendant for the want of such an affidavit, and a judgment 'that the plaintiff ought to recover of the defendant its damages by reason of the premises.' At the same time the defendant entered a motion to vacate the default, insisting on the want of jurisdiction in the court.

On the same day, James B. Carter, alleging that he was when the attachment was levied, and still continued to be, a part owner of the tug, filed a motion that he be made a defendant, and be permitted to defend against the petition.

On the fifth of November, the motion of Johnson to vacate the default against him was overruled and the motion of Carter was denied. Thereupon Johnson filed a motion to dismiss the petition for want of jurisdiction in the court to enforce the lien claimed, because the tug was a steam-vessel of above 20 tons burden, duly enrolled and licensed in conformity to title

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L of the Revised Statutes of the United States, and was engaged in the business of domestic commerce and navigation on the navigable waters of the United States, and that exclusive jurisdiction to enforce a lien in rem on the tug was in the district court of the United States. This motion was denied.

Proper bills of exceptions were allowed to the foregoing rulings.

On the thirtieth of January, 1882, the damages were assessed by a jury at $300; and a judgment was entered in favor of the plaintiff against Johnson and Christy, for $300 and costs, on the eleventh of February, 1882. They excepted, and they and Carter appealed to the appellate court for the First district of Illinois. That court, in July, 1882, affirmed the judgment of the circuit court of Cook county, and an appeal was taken by the same parties to the supreme court of Illinois. Among the assignments of error in that court were these: That Carter was not allowed to defend; that the judgment was entered against Christy without notice or process; that the inferior courts had no jurisdiction to enforce the lien on a vessel engaged in domestic commerce between the states; that the statute of Illinois violated the constitution of the United States; and that the exclusive jurisdiction in the premises was in a court of the United States.

The statute under which proceedings in this suit took place is chapter 12 of the Revised Statutes of Illinois, entitled 'Attachment of Water-craft,' which went into effect July 1, 1874. Rev. St. Ill. 1881, p. 137. The act (section 1) gives a lien on all water-craft of above five tons burden 'used or intended to be used in navigating the waters or canals of this state, or used in trade and commerce...

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