Madruga v. Superior Court in and for San Diego County

• Citation: 251 P.2d 1,40 Cal.2d 65
• Court: United States State Supreme Court (California)
• Decision Date: 17 December 1952
• Parties: . L. A. 22511. Supreme Court of California, in Bank

Page 1

251 P.2d 1

40 Cal.2d 65

MADRUGA v. SUPERIOR COURT IN AND FOR SAN DIEGO COUNTY.

L. A. 22511.

Supreme Court of California, in Bank.

Dec. 17, 1952.

Levenson, Levenson & Block and Eli H. Levenson, San Diego, for petitioner.

Luce, Forward, Kunzel & Scripps, San Diego, for respondent.

SHENK, Justice.

Co-owners representing eighty-five per cent of the interest in the Oil Screw Vessel Liberty, Official No. 256,332, docked at the City of San Diego, filed in the superior court in San Diego County a complaint for partition by sale of the vessel and distribution of the proceeds to all the co-owners. Manuel S. Madruga, the owner of the remaining fifteen per cent interest, named as defendant in the complaint, filed a demurrer stating among other grounds that the superior court had no jurisdiction of the subject matter and that exclusive jurisdiction was in the federal court. The respondent court overruled the demurrer and announced that it would proceed by requiring the defendant to answer the complaint. Thereupon the minority owner and defendant in the partition proceeding applied for the writ of prohibition directing the respondent court to refrain from further proceedings. The alternative writ issued. The jurisdictional question is submitted on the petition and the demurrer thereto.

The action in the respondent court is one for partition by sale of the vessel as personal property and for distribution of the proceeds to the several co-owners in accordance with their stated individual interests, pursuant to section 752a et seq. of the Code of Civil Procedure. It is alleged that there are no liens or encumbrances against the vessel. Partnership and accounting problems are not involved.

It is the petitioner's position that the jurisdictional question has been determined favorably to his contention by this court's decision in Fischer v. Carey, 1916, 173 Cal. 185, 159 P. 577, L.R.A.1917A, 1100. The respondent seeks to distinguish that case as one involving minority owners and contends that the state has concurrent jurisdiction with the federal court by virtue of the saving clause in the federal judicial Code.

Section 2 of Article III of the United States Consititution provides that the judicial power of the United States courts shall extend 'to all Cases of admiralty and maritime Jurisdiction'. The Act of Sept. 24, 1789, sec. 9, c. 20, 1 Stat. at L. 73, 77, Jud. Code, § 24(3), 28 U.S.Code, § 41(3), provided that the United States District courts should have 'exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction * * * saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it'. By decision this saving clause has been deemed to refer to the existing right to proceed against parties in personam, as in contract or tort. See North Pac. Steamship Co. v. Ind. Acc. Comm., 1917, 174 Cal. 346, 163 P. 199, workmen's compensation; Higgins v. Eva, 1928, 204 Cal. 231, 267 P. 1081, action for proportionate share of cost of salvaging and repairing the vessel; United States of Mexico v. Rask, 1931, 118 Cal.App. 21, 4 P.2d 981, lien for repairs. But it has been said that the right to proceed in rem is the distinctive remedy of admiralty and that neither Congress nor the state can confer jurisdiction upon the state courts to proceed in rem. See Benedict on Admiralty, p. 33 et seq. It has been held that the proceeding to partition (licitation or sale) is one in rem, although also in personam by the necessity of requiring all co-owners to be joined. Tucci v. Arbusto, D.C.S.D.N.Y. 56 F.2d 666.

Section 41(3) of the Judicial Code was subsequently repealed and in 1948 section 1333, 28 U.S.C. was substituted. In 1949 Congress amended section 1333, 63 Stat. 101, to provide that the district courts have original jurisdiction exclusive of the state courts of any civil case of admiralty or maritime jurisdiction 'saving to suitors in all cases all other remedies to which they are otherwise entitled.' Thus at this time there is no necessity to resolve the question whether the reservation of the original section referred only to remedies known to the common law. The question is whether there is now available to co-owners of a vessel a partition proceeding in the state courts.

In Fischer v. Carey, supra, 173 Cal. 185, 159 P. 577, L.R.A.1917A, 1100, decided in 1916, it was concluded that the state court did not have concurrent jurisdiction in a partition proceeding commenced by minority co-owners. There the minority owners sought an accounting, the appointment of a receiver to operate the vessel, the sale of the vessel and a division of the proceeds. The trial court appointed a receiver to take possession of and to operate the vessel, and to preserve her and her earnings until the further order of the court. On the appeal the defendants' contention that the controversy was cognizable exclusively in the federal district court prevailed. This court held that on the facts equitable relief by way of accounting was merely incidental to the principal relief sought, namely, the sale of the ship and a distribution of the proceeds; that it was essentially a proceeding in rem and thereby invaded the exclusive admiralty jurisdiction of the federal court. It was declared that...