Daily v. Doe

• Decision Date: 01 January 1880
• Citation: 3 F. 903
• Parties: DAILY v. DOE, etc., and CANAL-BOAT A. NOXON, etc.
• Court: U.S. District Court — Southern District of New York

3 F. 903

DAILY v. DOE, etc., and CANAL-BOAT A. NOXON, etc.

United States District Court, S.D. New York.

1880

W. R Beebe, for libellant.

J. A Hallen and W. Mynderse, for respondent Dutcher.

T Saunders, for owners of cargo.

CHOATE D.J.

This is a suit to recover possession of the canal-boat A. Noxon. The libel alleges that the libellant is, and ever since July 1876, has been, the sole owner of the canal-boat; that in July, 1876, he became the owner of the boat by a purchase from the executors of one William Murtagh, the same having been sold under a writ of venditioni exponas issued out of this court, and bought in by the said Murtagh August 28, 1874; that the respondent, John Doe, whose real name is unknown, is in the unlawful possession of the boat, and unlawfully refuses to allow the libellant to take possession of her, and has kept the libellant from the lawful possession of the same since about the year 1879. The libel alleges a demand and refusal to deliver possession of the boat.

One Susan Dutcher appears as respondent. Her answer denies that the libellant is the owner of the boat. It admits that the boat was sold under a writ of venditioni exponas issued out of this court, but alleges that the writ was fraudulently obtained, by collusion between one Walker and said Murtagh and one Williams, the master of the boat; that Walker pretended to act as the authorized proctor of the owner of the boat, though he was not authorized to act as such by the owner, and acted as such without the knowledge or consent of the owner; that Murtagh obtained no title to the boat, and that she was never sold under any valid judgment or decree; that the respondent is the lawful owner, and entitled to the possession of the boat. The answer also denies the alleged demand and refusal, and denies the jurisdiction of the court. It then alleges that in 1867 one Wennie, the builder of the boat, sold and delivered her to one Philip Dutcher; that in April, 1873, Philip Dutcher entered into an agreement with James M. Williams, by which Dutcher agreed to transfer the boat to Williams in consideration of $2,000, and Dutcher agreed to give Williams a bill of sale, when the payments agreed upon had been actually made, in the meantime the title of the boat remaining in Dutcher; that Williams navigated the boat, and finally secreted the same so that she could not be found by Dutcher, but Williams failed to make the payments; that Dutcher searched for the boat, but she was secreted by Williams, Murtagh, and the libellant, who also altered her appearance for the purpose of concealment; that Dutcher was not able to find her till about August 28, 1879, when he found her at Port Schuyler, in the county of Albany, state of New York; that he at once commenced an action of replevin, for the possession of the boat, in a court of competent jurisdiction; that the libellant herein duly appeared in said action, and, after trial, judgment was rendered, September 8, 1879, in favor of Dutcher and against this libellant, for the possession of the boat and for costs, and that possession was given, by the officer of the court, to Dutcher, under said judgment, the court being a justice's court, in the county of Albany; that the court had jurisdiction of the cause and of the parties, and that 20 days have elapsed since the judgment without any appeal; that on the eighth day of November, 1879, Philip Dutcher sold and delivered the boat to one Hallen, and on the tenth day of said November Hallen sold and delivered the boat to the respondent, Susan Dutcher.

The first question that arises in this case is as to the validity and effect of the judgment of the justice's court, set up in the answer, as an adjudication upon the title or right to the possession of this boat, binding upon the libellant; for if it be true that, by the judgment of a court having competent jurisdiction of the subject-matter and of the parties, in a suit between Philip Dutcher, the vendor of the respondent, as plaintiff, and this libellant as defendant, it has been determined that the respondent's vendor was entitled to the possession, this libel, of course, must be dismissed.

It is, indeed, suggested that a party holding under a marshal's sale is not liable to be dispossessed by an action of replevin brought in a state court, and that the justice's court cannot disregard the decree of this court, and the possession held under it. It appears that in the action in the justice's court the title of libellant, as set forth in his libel, was shown, and the record of this court in the suit in which the boat was sold was put in evidence, and, nevertheless, the jury found for the plaintiff for possession, and the justice rendered judgment as alleged in the answer. But obviously there is nothing in the suggestion that a purchaser under a marshal's sale, or one who succeeded to his title, is not, equally with any other person having or claiming to have a title to a vessel, liable to be sued, in an action of replevin to recover the same, in any state court which, under the laws of the state, has jurisdiction over the parties, and also jurisdiction over the subject-matter; that is, of an action of replevin.

Possession under a marshal's deed gives the grantee no exemption from being sued. If sued he must show his title by way of defence. The commencing of a suit against him by due process of law is not an interference with the authority of the marshal, or with the court by whose authority he sells. There is nothing in the laws of the United States impairing the concurrent jurisdiction of the state courts over suits for the possession of ships because the title of the defendant sued is thus derived. The Royal Saxon, 1 Wall. 333. Nor is there any difference between a court of general and a court of limited jurisdiction in the effect of the judgment as a conclusive determination of the rights of the parties, provided the court had jurisdiction to hear and determine the case, and jurisdiction of the parties. A judgment of an inferior court is just as binding in such a case as that of a court of general jurisdiction, subject, of course, to that right of appeal or review which the laws of the state may give to the defeated party.

It seems also to be the law of the state of New York that the judgment rendered by a justice's court is valid, though not entered in his docket, and omissions in his docket may be supplied by parol evidence. In this case, although the entry of judgment is simply 'Costs, 8.75,' it has been satisfactorily shown that the justice declared his judgment in favor of the plaintiff, after trial and verdict, and in conformity to the verdict. Hall v. Tuttle, 6 Hill, 38.

The question, then, is whether it is shown by the respondent that the justice had jurisdiction of the parties and the subject-matter. That he had jurisdiction of the parties if he had jurisdiction of the subject-matter-- that is, if the case was one that he was competent to try-- is clear enough, since they appeared, put in a complaint and answer, and went to trial without any objection on the part of the defendant, this libellant. He thereby waived any defect in the process, so far as jurisdiction of his person is concerned. The question whether the justice had jurisdiction of the subject-matter depends on the construction of the statute under which he acted. That statute provides that justices of the peace shall have civil jurisdiction in certain cases, including 'an action to recover the possession of personal property claimed, the value of which, as stated in the affidavit of the plaintiff, his agent, or attorney, shall not exceed the sum of $200. ' It is provided in the same statute that, before any process shall issue, the plaintiff, his agent, or attorney shall make proof, by affidavit, showing among other things the 'actual value' of the property claimed. This is, unquestionably, the affidavit first referred to as 'the affidavit of the plaintiff, his agent, or attorney. ' The question is whether this proof by the affidavit, that the value does not exceed $200, is an essential prerequisite to the attaching of the jurisdiction of the court. In the absence of authoritative decisions of the state courts it might be considered doubtful whether the substance of the requirement as to jurisdiction might not be that the value of the property in fact does not exceed $200, and whether, where the defendant appears and submits to the jurisdiction, the failure to make the affidavit might not be considered as cured by his waiving it. But the court of appeals have, I think, passed on this question, and given a construction to the statute, holding that its meaning is not that the justice has jurisdiction when the value of the property does not in fact exceed $200, but only in case the plaintiff, his agent, or attorney has, by his affidavit, made proof of that fact. I think this is the real meaning and effect of the decision in Dennis v. Crittenden, 42 N.Y. 542, and this court is bound to follow that decision. The affidavit being essential to conferring jurisdiction on the justice, the failure to make the affidavit cannot be waived by the defendant's appearing and not taking the objection. Consent cannot give jurisdiction over the subject-matter. As the rule is very briefly but very exactly expressed, in Coffin, Executor, v. Tracey, 3 Caines, 129, 'Consent will take away error, but neither that nor confession will give jurisdiction. ' See, also, Bellinger v. Ford, 14 Barb. 250; Hoyt v. Molony, 2 N.H. 322; Dudley v. Mayhew, 3 N.Y. 9.

It is insisted, however, that as it does not affirmatively appear by the proofs that there was no affidavit, and it does appear that the justice went on and took jurisdiction, and the defendant appeared and...