Braithwaite v. Jordan
| Decision Date | 28 October 1895 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Burleigh County; Winchester, J.
Action by William Braithwaite against W. B. Jordan and others on an appeal bond. From a judgment sustaining a demurrer to the complaint, plaintiff appeals.
G. W Newton, for appellant.
Courts of admiralty exercise a dual jurisdiction (a) as instance courts, (b) as prize courts. 3 Blackst. Com. 108, n. 14; Percival v. Hickey, 18 Johns. 257; Doanes Adm v. Penhallow 1 Dall. 218. As instance courts they are governed by one system of laws, and as prize courts by another system. 3 Blackst. Com. 108. The instance court is governed by the civil law, the laws of Oleron and the customs of admiralty modified by statute. As an instance court the admiralty and the common law courts have exercised concurrent jurisdiction, whereas the admiralty as a prize court, has maintained exclusive jurisdiction of matters of prize. Henderson v. Clarkson, 2 Dall. 174; Slocum v Mayberry, 2 Wheat. 1; Novian v. Hallett, 16 Johns. 327; Doane v. Penhallow, 1 Dall. 218; Ross v. Rittenhouse, 2 Dall. 160; Sasportas v. Jennings, 1 Bay. 470; Finlay v. The Ship William, 1 Pet. Adm. 12; Montgomery v. Jecker, 13 How. 498; U. S. v. Weed, 5 Wall. 62; Rose v. Himely, 2 Wheat. App. 41.
The case at bar is not affected by decisions in cases of prize or by the rule of exclusive jurisdiction in the admiralty is such cases, for the reason that Rea v. The Eclipse was not within the admiralty jurisdiction as a prize court, but upon the instance side of the admiralty.
The common-law courts have jurisdiction of all causes cognizable upon the instance side of the admiralty court, except where the proceeding is in rem to enforce a maritime lien. The Belfast, 7 Wall. 624; The Moses Taylor, 4 Wall. 411. There is nothing in the admiralty rules that effects the appeal from the Territorial District Court to the Supreme Court of the Territory taken in the "Eclipse" case. The organic law § § 1865, 1869, 1909 and 1910 vested the Territorial District Courts with jurisdiction of cases arising under the constitution and laws of the United States. Steamer City of Panama v. Phelps, 25 L.Ed. 1061, 11 Otto 453. By the enactment of § 1910 the District Courts of the territory were not made Circuit and District Courts of the United States. They are courts of the territory invested for some purposes with the powers of the courts of the United States. Reynolds v. United States, 8 Otto 145 (25 L.Ed. 244); United States v. Beebe, 2 Dak. 292, 11 N.W. 505. There was a judgment in the District Court as to the ownership and right of possession of the boat in question. The defeated parties sought a review of that judgment by appeal to the Territorial Supreme Court, as provided by the territorial statute. They put up the undertaking required by § § 414 and 416 Code of Civil Pro. and in one instrument § 420 Code Civil Pro. This was not an admiralty bond, admiralty recognizance, or admiralty stipulation. It was an undertaking on appeal from the Territorial District Court in an action wherein it was attempting to exercise jurisdiction under the constitution and laws of the United States. It is admitted that under § 22 of the enabling act the case of Rea v. The Eclipse was properly remanded by the United States Supreme Court to the District Court of the United States for the district of North Dakota, and that that court properly entered up judgment as directed by the mandate against the libellants and their stipulators (for costs) and the intervenors and their stipulators (for costs). Binney v. Porter, 9 How. 235; Forsyth v. United States, 9 How. 571; McNulty v. Batty, 10 How. 72. But such fact does not change the rights of the parties to the undertaking in question. The relation of the parties is contractual and were fixed and vested before the enabling act was passed. The territorial statute under which the undertaking was given, neither the undertaking itself vests appellant or the court with the privilege or power of entering up summary judgment against the respondents. Stipulations for costs are enforced summarily, stipulations for value will stand in the place of the res. When a stipulation is taken in an admiralty suit for the property subject to legal process and condemnation, the stipulation is deemed a mere substitute for the thing itself and the stipulators liable to all those authorities on the part of the court, which it could properly exercise if the thing itself were still in its custody. The Palmyra, 12 Wheat. 1. Barlett v. Spicer, 75 N.Y. 528; The Schooner Ann Caroline v. Willis, 2 Wall. 538; The W. H. Webb v. Barling, 14 Wall. 406. Summary judgment by motion is never deemed an exclusive remedy. It is cumulative. 1 Enc. Pl. and Pr. 1018. The case at bar is entirely distinct from the judgment in Rea v. The Eclipse. At the best that judgment is a mere incident. A purely personal contract without relation to any maritime service is not within the admiralty jurisdiction. The Virginia, 2 Paine, 115. The damages recoverable have nothing essentially maritime in their composition. The Paola, 32 F. 174. The undertaking in question did not take the place of the Eclipse. It is not a stipulation for value in admiralty to stand in the place of the res or any part or interest in it. Hagan v. Lucas, 10 Pet. 400; Barlett v. Spicer, 75 N.Y. 528; Ramsey v. Allegre, 1 Wheat. 611; Fox v. Patton, 22 F. 746. And the state court has concurrent jurisdiction of a suit upon it. Hawes Jurisdiction of Courts § 47. Myers v. Isaacs, 35 La.Ann. 221, 30 L.Ed. 642; Lacaze v. Penn. 1 Addison 58.
Edgar W. Camp, for respondent.
Admiralty courts have jurisdiction to enforce bonds given therein. The Baltic, Fed. cases No. 826; The Wanata, 5 Otto 600; The Allegator, Fed. cases No. 248; Nelson v. U.S. Fed. cases No. 10,116. Bonds are, to all intents and purposes, stipulations in the admiralty. Dunlap's Prac. 164. McLellan v. U. S. Fed. cases No. 8895. It matters not whether security in admiralty and maritime causes be a bond, recognizance or stipulation as the court has inherent authority to take it, and to proceed to award judgment or decree thereon according to the course of the admiralty, unless where some statute has prescribed a different course. The Octavia, Fed. cases No. 10,423; Conkling' Adm. 2nd Ed. 105; Holmes v. Dodge, Fed. cases, No. 6637; Gaines v. Travis, Fed. cases No. 5180; Ben. Adm. 2nd Ed. 290; In Re Sawyer, 21 Wallace 235; The Sydney, 47 F. 260. No discrimination is made between appeal bonds and other stipulations in admiralty. 2 Brown's Civ. and Adm. Law 407, 429, 440; The Elmira, 16 F. 138; Barlett v. Spicer, 75 N.Y. 528; Campbell v. Hadley, Fed. cases No. 2358; The Deleware, Fed. cases No. 3762; The Oregon, 15 S.Ct. 860, 3 Blackstone 108. A stipulation or bond in admiralty is regarded as a fund in court to be distributed by that court. The Tolchester, 42 F. 180; Pearce v. Ins. Co., 96 U.S. 461. Admiralty having jurisdiction of the main case, has jurisdiction of all incidental and ancillary proceedings. 2 Brown 107, DeLovio v. Boit, Fed. cases No. 3776, Dean v. Angus, Fed. cases No. 3702; Munks v. Jackson, 66 F. 571; Campbell v. Hadley, Fed. cases No. 2358; Jackson v. Munks, 58 F. 596. In admiralty proceedings stipulations and bonds are treated as ancillary and subsidiary to the main case. The Eclipse, 135 U.S. 599; Ramsey v. Allegre, 12 Wheat. 611-630; 2 Browne 142-433 and 541. A suit upon an appeal bond in equity is not an original suit but is an off-shoot or out-branch of the suit in which the bond was given and jurisdiction of that suit gives jurisdiction of the subject matter of this suit. Seymour v. P. and C. Con. Co., Fed. cases No. 12,689; Arnold v. Frost, Fed. cases No. 558; Hatch v. Dorr, Fed. cases No. 6206; Lamb v. Ewing, 54 F. 269. The jurisdiction of a court is not exhausted by the rendition of a judgment but continues until that judgment is satisfied, process subsequent to judgment is as essential to jurisdiction as process antecedent to judgment. Rio Grande v. Vinet, 132 U.S. 478; Thompson v. McReynolds, 29 F. 657. Debt on recognizance of bail is a continuation of the original suit, because as a general rule the action must be brought in the same court. Davis v. Packard, 7 Pet. 276; McDermott v. Doyle, 11 Mo. 443; Burtus v. McCarty, 13 Johns. 424; Davis v. Packard, 6 Wend. 327; P. P. C. Co. v. Washburn, 66 F. 790. Where the Federal Court had sole jurisdiction of the principal matter it should have also of the subsidiary. Bartlett v. Spicer, 75 N.Y. 528. The state court has no jurisdiction of this cause. Penhollow v. Doane, 3 Dallas, 54; Jennings v. Carson, 4 Cranch. 2; The Blanche Page, Fed. cases No. 1524; Ex parte Philips, 25 L.Ed. 781.
Although the steamer Eclipse has for years lain at the bottom of the Missouri river, the litigation connected with her shows no signs of decadence. 4 Dak. 218, 30 N.W. 159; on appeal, 135 U.S. 599, 10 S.Ct. 873; 1 N.D. 455, 48 N.W. 354; 1 N.D. 475, 48 N.W. 361; 2 N.D. 57, 49 N.W. 419; 3 N.D. 365, 56 N.W. 133, 34 L.Ed. 269. In this case Capt. Braithwaite is seeking to recover damages for breach of an undertaking given by defendants on appeal from the District Court to the Supreme Court of the Territory of Dakota, from a judgment rendered in a proceeding in admiralty instituted to try his title to, and right to the possession of, this vessel. The questions of law on the merits which are here at issue arise on demurrer to the plaintiff's complaint. The trial court sustained the demurrer. The plaintiff has appealed. It is obvious from the complaint that the undertaking was...
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