40 Cal.2d 65, 22511, Madruga v. Superior Court

Docket Nº:22511
Citation:40 Cal.2d 65, 251 P.2d 1
Opinion Judge:[10] Shenk
Party Name:Madruga v. Superior Court
Attorney:[7] Levenson, Levenson & Block and Eli H. Levenson for Petitioner. [8] Luce, Forward, Kunzel & Scripps for Respondent.
Case Date:December 17, 1952
Court:Supreme Court of California

Page 65

40 Cal.2d 65

251 P.2d 1

MANUEL S. MADRUGA, Petitioner,


THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent.{Page 40 Cal.2d 66}

L. A. No. 22511.

Supreme Court of California

Dec. 17, 1952

In Bank.

Page 66


Levenson, Levenson &amp Block and Eli H. Levenson for Petitioner. Luce, Forward, Kunzel &amp Scripps for Respondent



Coowners representing 85 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 coowners. Manuel S. Madruga, the owner of the remaining 15 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 coowners in accordance with their stated individual interests, pursuant to sections 752a et sequitur 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 [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 Constitution provides that the judicial power of the United States courts shall extend "to all cases of admiralty and maritime jurisdiction." The Act of September 24, 1789, section 9, chapter 20 (1 Stats. at L. 73, 77 Jud.Code, section 24(3), 28 U.S. Code, section 41 (3)), provided that the United States District Courts

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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. Industrial Acc. Com. (1917), 174 Cal. 346 , workmen's compensation; Higgins v. Eva (1928), 204 Cal. 231 , action for proportionate share of cost of salvaging and repairing the vessel; United States of Mexico v. Rask (1931), 118 Cal.App. 21 , 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...

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