J. P. Jorgenson Co. v. Rapp

• Decision Date: 02 December 1907
• Docket Number: 1,511.
• Citation: 157 F. 732
• Parties: J. P. JORGENSON CO. v. RAPP et al.
• Court: U.S. Court of Appeals — Ninth Circuit

157 F. 732

J. P. JORGENSON CO. v. RAPP et al.

No. 1,511.

United States Court of Appeals, Ninth Circuit.

December 2, 1907

This is a suit in equity, commenced by the appellant in the District Court of the United States for the District of Alaska Division No. 1, and comes to this court on appeal from an order of that court denying a motion for an injunction pendente lite. The appellant is a corporation, and is the plaintiff in the bill in equity. It was also the plaintiff in a replevin suit previously commenced in the same court to recover possession of certain logs which it owned, and which in the process of being towed as a raft from near Ideal Cove to Juneau, Alaska, by two steamers, the Peerless and the Seolin, parted the towline and broke adrift in a storm, and were subsequently gathered up and taken possession of by the defendants. The steamer Peerless was employed by the plaintiff. The steamer Seolin was controlled and operated by Harry Hanson, the owner and also the engineer, and one of the defendants. The other defendants, with the exception of the defendant H.F. Rapp, were employed on the steamer Seolin during the towing service. This vessel, with its officers and crew, was employed by the Peerless to assist in towing the raft of logs when the towline parted and the logs broke adrift on September 27, 1906. On September 29, 1906, the same defendants that were employed on the steamer Seolin on September 27, 1906, when the towline parted, with the addition of the defendant Rapp as master, took the steamer Seolin and proceeded to gather up the logs that broke away from the tow on September 27th. The work of the defendants in gathering up the logs occupied the 29th and 30th of September and the first nine days of October, 1906. The plaintiff claimed the logs after their recovery, and offered to pay the defendants $400 for their services in recovering them. The defendants rejected the offer, and thereupon the plaintiff demanded possession of the logs in writing. The demand was refused, and thereupon plaintiff brought its replevin suit alleging its ownership of the logs and the unlawful possession and claim of the defendants. The plaintiff obtained possession of the logs under the writ of replevin upon giving the usual bond.

In their original answer to plaintiff's complaint in the replevin suit, the defendants denied plaintiff's ownership and possession of the logs as alleged in the complaint, claimed the exclusive right, title, and ownership of the logs in themselves, and alleged that, while they were running and operating the steamer Seolin on the 29th of September, 1906, they discovered the logs floating upon the waters of Stevenson Passage at a point between Midway Island and Taku Inlet in southeastern Alaska; that the logs were loose and scattered over a distance of several miles absolutely abandoned by whomsoever owned them; that, if they were ever the property of the plaintiff, it had, prior to the rescue and picking up of the same by the defendants abandoned the same and left them at the mercy of the elements. The defendants further alleged, in paragraph 6 of the answer, that they spent considerable time, to wit, 12 days, in rescuing and picking up the logs referred to, and that the cost of the defendants in so recovering and picking up the said logs was the sum of more than $600. The defendants further alleged, in the seventh, eighth, and ninth paragraphs of their answer, that they had engaged a sawmill for the purpose of sawing said logs, but had been prevented from so doing by the commencement of the replevin suit and the taking of the logs out of the possession of the defendants; that the logs taken from the defendants contained 161,487 feet of lumber, worth $7.50 per 1,000 feet, or a total sum of $1,211; that they had obligated themselves and had become liable to the owners of said sawmill in the sum of $322.50; wherefore defendants demanded judgment against the plaintiff for the return of the logs and that they have and recover the sum of $922.50, being the amount of the loss sustained by them by reason of the plaintiff taking the logs from their possession, and for their costs and disbursements in the suit to be taxed. The plaintiff moved the court to strike paragraph 6 from the answer, on the ground that the same was irrelevant. After argument, this motion was granted, to which the defendants took no exception. Thereupon the defendants filed an amended answer, to which some objection was made and sustained by the court, and thereupon the defendants filed the second amended answer. In this second amended answer the defendants, as in their original answer, denied plaintiff's ownership and possession of the logs, claimed the exclusive right, title, and ownership of the logs in themselves, alleged their discovery of the logs floating upon the waters of Stevenson Passage, where they were loose and scattered over a distance of several miles, abandoned by whomsoever owned them, and alleged the engagement of the sawmill to saw up the logs, upon an agreement to pay for the same the sum of $215, based upon an estimate of $1 per 1,000 feet, upon an estimate of 215,000 feet in the logs; that the logs actually contained 161,487 feet of lumber, of the reasonable value of $7.50 per 1,000 feet, or a total sum of $1,211. The defendants thereupon prayed for judgment that the logs be restored to them, or, in case a redelivery could not be had, that they recover from the plaintiff the value of the logs, amounting to the sum of $1,211, and the sum of $215 as damages for the rental of the sawmill, and for costs and disbursements in the suit to be taxed.

In plaintiff's reply it denied defendants' claim of right to the logs, and alleged, among other things, that on or about the 22d day of September, 1906, plaintiff employed the steamer Peerless to tow for it the raft of logs described in the complaint and in the answer from near Ideal Cove to Juneau, Alaska, and while engaged in so doing the steamer Peerless became disabled and the captain of the vessel proceeded to Juneau for help, where he employed the steamer Seolin to aid the Peerless in towing said logs to Juneau; that while the steamers Peerless and Seolin were towing the raft of logs on September 27, 1906, a storm arose, and during the storm and by reason thereof the towing line from the steamers to the logs broke, and the boats, on account thereof and on account of the weather and darkness, were compelled to leave the logs for the time being, and by reason of the stress of weather were compelled to run to Snettisham Bay for the night and for security from the storm; that the steamer Peerless was in a disabled condition, and the next day, after looking for the raft of logs, the weather being very rough, it was decided to go to Juneau for repairs to the vessel; that the repairs were necessary and prerequisite to her being able to continue the work of gathering up the logs and taking them to Juneau; that before the repairs were completed the steamer Seolin also came to Juneau, and on September 29th, before the repairs of the Peerless had been completed, started out under the direction and control of the defendants for the sole purpose of seizing and appropriating said raft of logs and the logs therein to their own use; that the defendants (except the said H. F. Rapp) were on the steamer Seolin and engaged in operating her when she was engaged in towing said logs and when the tow line broke and the logs got away from the steamers; that the plaintiff never abandoned the logs and never intended to abandon them or to leave them or any of them without the intent to recover them; that the defendants well knew that the plaintiff had not abandoned the logs; that in taking possession of the logs the defendants acted wrongfully and with intent to seize and appropriate to their own use the logs of the plaintiff, well knowing that the plaintiff had not abandoned the logs or any of them; that there was no danger or risk to speak of that said logs could or would get lost, as by reason of the surrounding shores and the wind and tides then and there prevailing said logs would drift ashore, and there would remain until such time as plaintiff could go for them; that in leaving said logs, or any of them, in said inland waters, plaintiff was taking no risk of loss or injury to any of them.

The plaintiff thereupon moved the court to vacate and set aside the judgment on the ground that it was one for services work, and labor performed by the defendants for plaintiff on a basis of quantum meruit; that there was no issue in the said action or in the pleadings based upon any services, work, and labor performed upon a quantum meruit or otherwise; that the judgment was supported by no issue in the action, and was, therefore, null and void, and should be set aside, as the court had no jurisdiction to render any such judgment under the pleadings. The court denied the motion, and thereupon the plaintiff brought this suit in equity to restrain the enforcement of the judgment, alleging that it had no plain, speedy, and adequate remedy at law or otherwise, and had no remedy except that prayed for in the bill, for the reason that the amount of said judgment is less than the sum of $500, and is, therefore, not subject to correction by an appeal to the United States Circuit Court of Appeals. It is also alleged that the judgment is a cloud upon and a menace to the title and rights of the plaintiff to its personal and real estate in said district, and may be at any time made a lien against plaintiff's real estate; that the plaintiff is the owner of certain valuable real estate in and near the town of Juneau, Alaska, to wit, a sawmill and the land upon which it stands, and a large business building and...