Dorr v. Waldron
| Decision Date | 30 September 1871 |
| Citation | 14 Am.Rep. 86,62 Ill. 221,1871 WL 8369 |
| Parties | TUG BOAT E. P. DORRv.ASA D. WALDRON et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Chicago; the Hon. JOSEPH E. GARY, Judge, presiding.
Mr. WILLIAM H. CONDON, for the appellant.
Mr. NORMAN C. PERKINS and Mr. J. A. CRAIN, for the appellees.
This was an attachment under the act of 1845, brought to the Superior Court of Chicago at the June term, 1870.
The proceedings were regular under the statute, by affidavit, bond, statement of the cause of action, and bill of particulars, on which a writ of attachment issued, and was levied on the tug boat in question, “E. P. Dorr,” and by reading the writ “to Joseph Moffett, owner of said tug boat.”
The boat appeared by attorney and pleaded nil debit, and a special plea as follows: And for a further plea in this behalf, the defendant says, actio non, because it says, true it is that plaintiffs had, on December 18, 1869, a good and valid lien against, and on said defendant for supplies furnished to said defendant for the sum of money in said declaration mentioned, and on said date caused a writ of attachment to be issued out of and under the seal of the circuit court of said Cook County and the State of Illinois, being a court of record of superior jurisdiction, against the defendant, authorizing and directing the seizure and detention of the defendant with its engines, machinery, sails, rigging, tackle, apparel, and furniture, by the sheriff of said Cook County; that by virtue of said writ of attachment, the sheriff of said Cook County, on the 18th day of December, 1869, aforesaid, did attach, seize, and detain said defendant, with its engines, machinery, rigging, sails, tackle, apparel, and furniture, until the 28th day of March, 1870, when said defendant was released from custody of said sheriff, by the order of the Hon. E. S. Williams, judge of said circuit court, upon the bond of Joseph Moffett (the owner of said defendant), and W. S. Swan, which said bond was approved by said Hon. E. S. Williams, judge of said circuit court, on said March 28, 1870, which said bond released said defendant from the lien sought to be enforced in said suit; that said plaintiffs filed their declaration in said circuit court, on December 20, 1869, and defendant filed its plea and affidavit of merits in due time thereafter in time to prevent default; and said cause was at issue in said circuit court from the filing of said plea by defendant, until the 21st day of June, 1870, when said suit was dismissed at said plaintiffs' costs by said plaintiffs' attorneys, and this suit commenced by said plaintiffs for the same supplies mentioned in the suit previously begun in the circuit court as aforesaid.
And this the defendant is ready to verify, wherefore, etc.
To this plea there was a demurrer, which the court sustained.
The cause was then, by agreement, submitted to the court, who found for the plaintiffs twelve hundred and sixty dollars and costs, and rendered judgment for the same.
To reverse this judgment the defendant appeals, the bond being executed by Joseph Moffett, describing himself as “of the city of Cleveland, in the State of Ohio, and sole owner of the tug E. P. Dorr.”
The only question presented by the pleadings is the decision of the court upon the demurrer to the second plea.
The point presented by that plea is the fact that a prior attachment had been sued out of the circuit court against this tug, by which she was held until the 28th day of March, 1870, when she was released from the custody of the sheriff by the order of the circuit judge on the execution of a bond by Joseph Moffett, the owner, and one W. S. Swan. The cause was at issue in that court until the 21st day of June, 1870, when the suit was dismissed at the costs of the plaintiffs, and the present suit immediately thereafter, and on the same day, was commenced.
Appellant contends that the act in question being in derogation of the common law, should be construed strictly, so that when a boat is discharged upon bond being given the boat would be released from the lien sought to be enforced, and would only be liable to be taken and sold on execution issued on the judgment obtained against the boat, or upon the judgment which might be rendered upon the bond. The point appellant makes is, that the release of the tug by order of the circuit judge, on the execution of the bond, forever discharged the boat from the lien which appellees originally had on it, and that they must now look to their bond or resort to their common law remedy against the owner of the vessel.
Appellant cites, in support of his views, Martin v. Dryden et al. 1 Gilman, 187, and Conn et al. v. Caldwell, Id. 531.
These cases were under the general attachment law, under the operation of which a lien is created by the levy of the writ of attachment. It follows, necessarily, when the writ, or the suit consequent upon it, is dismissed the lien is gone; but no one ever supposed that another lien could not be had by the levy of another writ in another suit. In this case the lien was not created by the levy, but the levy was to enforce a lien created by law, and existed independent of a levy.
An abortive attempt to foreclose a mortgage by suit, when the cause was not tried on its merits, but dismissed on the plaintiff's motion, would destroy no lien created by the mortgage.
Another point made by appellant is, that it does not appear from the papers and proceedings in the cause that the Superior Court had jurisdiction.
This point was not raised in the court below in any form, and is now raised here for the first time, and it is based on the ground that the affidavit does not show the supplies were furnished at the home port of the vessel, and that she was a domestic vessel. Tug Montauk v. Walker, 47 Ill. 335.
Had this point been made in the court below the plaintiffs then might have taken leave to amend. Frink et al. v. King, Adm'r, 3 Scam. 144. It is now too late to make the objection.
The general question of the jurisdiction of a State court as conferred by the acts of 1845 and 1857, are considered at some length in Williamson v. Hogan, 46 Ill. 504, and the Tug Montauk v. Walker, supra, and Schooner Norway v. Jensen, 52 Id. 373, with reference to the decision of the Supreme Court of the United States in The Hine v. Trevor, 4 Wal., and other cases decided in the same court.
In “The Hine” case the court say, “We are sensible of the extent of the interests to be affected by our decision, and the importance of the principles upon which that decision must rest, and have held the case under advisement for some time, in order that every consideration which could properly influence the result might be deliberately weighed.”--P. 561. It was then distinctly announced that the jurisdiction of the District Courts of the United States, on the lakes and navigable waters connecting the same, was governed by the act of 1845, and that the jurisdiction is not exclusive, but expressly made concurrent with such remedies as may be given by State laws.--Pp. 566-569. The Hine v. Trevor was an action for a collision of steamboats running on the Mississippi River. It was decided to be a maritime tort, and cognizable exclusively in the admiralty, by force of the judiciary act of 1789, and properly, as that river was navigable from the sea by vessels of ten or more tons burden.
At the same term the case of “the Moses Taylor” was decided. Id. 411. That action was on a contract to transport a passenger by sea from New York to California, clearly a maritime contract, wholly to be performed on the sea, and of which a court of admiralty had exclusive jurisdiction, under the act of 1789. The act of 1845 had no place in the discussion, it was not alluded to by counsel or court, nor could it have been, the only question being, was the remedy given by the act of the legislature of California within the saving of the act of 1789? These cases were decided in 1866.
The next, in order of time, was the case of “The Belfast,” 7 Wallace, 624, decided in 1868.
It arose in the State of Alabama on a contract of affreightment of cotton between ports in that State, and was prosecuted under an act of the legislature of that State, entitled, “proceedings in admiralty,” by which a lien was created on the vessel, and proceedings to enforce it were allowed; in which, if there was more than one complaint, all were to be consolidated, and the court was required to render but one judgment against the vessel, and that,...
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