Norton, Assignee v. Switzer
| Decision Date | 01 October 1876 |
| Citation | 93 U.S. 355,23 L.Ed. 903 |
| Parties | NORTON, ASSIGNEE, v. SWITZER |
| Court | U.S. Supreme Court |
ERROR to the Supreme Court of the State of Louisiana.
Switzer brought suit against Mary Hein and John Hein in the Second Judicial District Court for the parish of Jefferson, which, by consent of parties, was transferred to the Fifth District Court of the parish of Orleans. During its pendency, he suggested that since the institution thereof the defendants had taken the benefit of the bankrupt law, and that Emory E. Norton had been appointed and qualified as their assignee. The court ordered that the latter, in his capacity as such assignee, be made a party to the suit in their place and stead. Process was personally served upon him; but he failed to appear. The cause coming on for trial, judgment was rendered in favor of Switzer against Norton, said assignee. The latter appealed to the Supreme Court of the State; and the judgment having been there affirmed, he sued out this writ of error.
Submitted on printed arguments by Mr. E. T. Merrick and Mr. G. W. Race for the plaintiff in error, who, upon the question as to whether an assignee in bankruptcy can, after citation in a pending suit, be substituted by a State court as a defendant in the place and stead of the bankrupt, referred to In re Cook and Gleason, 3 Biss. 119; In re Ernest Sacchi, 10 Blatchf. 29; In re Geo. W. Anderson, 9 Bank. Reg. 360.
No counsel appeared for the defendant in error.
State legislatures have no authority to create a maritime lien, nor can they confer any jurisdiction upon a State court to enforce such a lien by a suit or proceeding in rem, as practised in the admiralty courts.
Causes of action which give rise to a maritime lien, whether contracts or torts, may be prosecuted in other modes of proceeding as well as in rem in the admiralty.
Wherever a maritime lien arises, the libellant or plaintiff may waive the lien in the admiralty, and pursue his remedy by a suit in personam, or he may institute an action at law, if the common law is competent to give him a remedy. Such a party may, if he sees fit, proceed in rem in the admiralty; and, if he elects to enforce the maritime lien which arises in the case, he cannot proceed in any other mode or forum, as the jurisdiction of the admiralty courts to enforce a maritime lien is exclusive, and cannot be exercised in any other mode than by a proceeding in rem.
Parties in maritime cases are not restricted to that mode of proceeding, even in the admiralty, as they may waive the lien and proceed in personam against the owner or master of the vessel, in the same jurisdiction; nor are they compelled to proceed in the admiralty at all, as they may resort to their common-law remedy in the State courts, or in the Circuit Court, if the party seeking redress and the other party are citizens of different States. Leon v. Galceran, 11 Wall. 190.
Sufficient appears to show that the plaintiff sued John and Mary Hein as owners of the steamboat 'Frolic,' in an action of assumpsit, and that he alleged in his petition that they were indebted to him in the sum of $870 with interest, for services rendered as master and superintendent in repairing the vessel, at the rate of $300 per month, for the period specified in the bill of particulars annexed to the petition. He also alleged that he was a privileged creditor, that the steamboat was about to leave the jurisdiction, and that he was apprehensive he should lose his claim if she should depart before it was satisfied; wherefore he prayed for a writ of provisional seizure, and for process to compel the appearance of the defendants.
Summonses were issued and served; and the defendants appeared and filed a plea to the jurisdiction of the court, in which they alleged that the suit is not a proceeding in rem, but a proceeding against the persons of the defendants, and that they reside outside of the jurisdiction of the court. They also filed an exception, that the plaintiff cannot proceed by provisional seizure, because the services for which he claims payment did not arise while the steamboat was navigating or trading within the State.
Pursuant to the order of the court, the steamboat was surrendered to the defendants, and they gave the usual bond for value; and the cause, by the consent of the parties, was transferred from the second to the fifth judicial district, where the residue of the proceedings took place.
Four days later the defendants appeared and filed an answer, in which they denied all the allegations of the petition; that John Hein was ever owner of the steamboat; that the plaintiff has any privilege on the steamboat for any work or services, or that he ever rendered services as charged; and prayed judgment in their favor.
On the same day the court granted a rule that the plaintiff show cause on a day named why the provisional seizure issued in the case should not be set aside. Reasons were also assigned by the defendants in support of the motion; but the plaintiff, before the return-day of the rule, amended his petition, and alleged that he omitted to state in his original petition that John Hein, the agent and manager of the steamboat, gave him a note for the sum of $870, as an acknowledgment for the services charged in the bill of particulars; and he prayed leave to file the note and the amended petition, and that the defendants might be cited to appear and answer.
Leave to file the petition and note was granted; and they were filed, as appears by the record. New summonses were issued to the defendants; and they appeared and filed an exception to the supplemental petition, because the same alters the demand, showing that the claim as stated in the original petition has been novated by the taking of a note. Hearing was had, and the exception was dismissed; and it also appears that the rule to show cause why the provisional seizure should not be set aside was also dismissed, by consent of the parties.
Separate answers were then filed by the defendants, as follows: The defendant first named denies that he was or is the owner of the steamboat, and says that the note was given as a novation of the prior debt, and was accepted by the plaintiff. Mary Hein also denies that she is indebted as charged, or that the note was given as evidence of the debt; but avers that it was given by John Hein as a novation and in payment of the original debt, as acknowledged by the plaintiff. Subsequently she pleaded payment of the sum of $400, as per receipt exhibited in the record.
Testimony was taken; and the defendants subsequently pleaded as a peremptory exception that the suit is against a steamboat, and that the District Court, sitting in admiralty, has exclusive jurisdiction of such cases. Both parties were heard, and the court sustained the exception. Due application was made by the plaintiff for a new trial; and, pending that motion, the plaintiff suggested to the court that the defendants had severally taken the benefit of the Bankrupt Act, and that Emory E. Norton had been appointed and qualified as their assignee; whereupon the court ordered that the assignee of the defendants be made a party to the suit, in his capacity aforesaid, in place and stead of the defendants. Regular process was accordingly issued and served in person upon the assignee.
Two continuances followed, and the cause subsequently came on for trial. Evidence was introduced by the plaintiff; and the court, on the 22d of April, 1870, rendered judgment in his favor, that he recover of Emory E. Norton, assignee of the defendants John and Mary Hein, the sum of $870, with interest until paid, and with costs and privilege on the steamboat.
Within due time the assignee claimed a devolutive appeal to the Supreme Court of the State; and it was granted. Seasonable entry of the appeal was made in the Supreme Court; and that court affirmed the judgment of the court of original jurisdiction, holding, First, that the suit was a personal action against the owners, and not a proceeding in rem to enforce a maritime lien; second, that the State court, having acquired jurisdiction before the bankrupt proceedings were commenced, was not divested of jurisdiction by the decree adjudging the defendants bankrupts, so long as the amount of the debt claimed was in dispute and remained unascertained.
Application for a new trial was made, and was refused by the court; and Emory E. Norton, as assignee of the bankrupt defendants, sued out a writ of error, and removed the cause into this court.
Since the cause was entered here the assignee has assigned two errors, to the effect as follows: 1. That the State court was without authority or jurisdiction to render the judgment against the plaintiff in error, as assignee of John and Mary Hein, adjudged bankrupts, for the sum specified in the record. 2. That the judgment is erroneous, because the claim of the plaintiff was against the steamboat for a claim thereon, as master and superintendent, which was cognizable exclusively in the admiralty, and not in the courts of the State where it was adjudicated.
Assignees in bankruptcy are appointed by the creditors, and the judge or register is required to assign and convey to the assignee all the estate, real and personal, of the bankrupt, with all his deeds, books, and papers relating thereto; and the fourteenth section of the Bankrupt Act provides to the effect that all the properties of the bankrupt of every kind, including property conveyed by the bankrupt in fraud of his creditors, and all rights of action, shall, in virtue of the adjudication of bankruptcy and the appointment of his assignee, be at once vested in such assignee, and that the assignee may sue for and recover the said estate, debts, and effects, and may prosecute and defend all suits at law or in equity pending at the time of the adjudication of bankruptcy, in which such bankrupt is a party, in his own name, in...
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Riehle v. Margolies 1929
...proceedings established conclusively in bankruptcy the existence and amount of the debt provable against the estate. Norton v. Switzer, 93 U. S. 355, 363, 364, 23 L. Ed. 903. Compare Hill v. Harding, 107 U. S. 631, 2 S. Ct. 404, 27 L. Ed. 493. A judgment in a state court against a receiver,......
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...decided shortly after the Act's passage, where the effect of the new statute was not at all presented or discussed. Norton v. Switzer, 93 U.S. 355, 356, 23 L.Ed. 903. In fact, the approach this Court followed in the interpretation of the Saving Clause during this period supports, rather tha......
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...369; The Lottawanna, 20 Wall. 201, 218, 22 L.Ed. 259; Edwards v. Elliott, 21 Wall. 532, 556, 22 L.Ed. 487; Norton v. Switzer, 3 Otto 355, 365, 93 U.S. 355, 365, 23 L.Ed. 903; Johnson v. Chicago, etc., Elevator Co., 119 U.S. 388, 397, 7 S.Ct. 254, 258, 30 L.Ed. 447; The J. E. Rumbell, 148 U.......
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...court, where jury trial may usually be had, see Leon v. Galceran, 11 Wall. 185, 78 U.S. 185, 20 L.Ed. 74 (1871); Norton v. Switzer, 93 U.S. 355, 356, 23 L.Ed. 903 (1876); Garrett v. Moore-McCormack Co., Inc., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239 (1942). Hence, it is reasoned, if such a ......