Johnson v. the Chicago
| Decision Date | 20 November 1882 |
| Citation | 105 Ill. 462,1882 WL 14347 |
| Parties | JACOB JOHNSON et al.v.THE CHICAGO AND PACIFIC ELEVATOR COMPANY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Circuit Court of Cook county.
This was a suit commenced by petition in the circuit court of Cook county, under chapter 12 of the Revised Statutes, entitled “Attachment of Water Craft,” by the Chicago and Pacific Elevator Company, against Jacob Johnson, for damages arising from the tug-boat “Parker,” of which Johnson was alleged to be the owner, through the negligence of the agents of Johnson then in charge of the tug-boat towing the schooner “G. C. Trumpf,” on the Chicago river, whereby the schooner ran into the elevator of the petitioner, breaking the same, and causing a quantity of corn to run out into the river. A writ of attachment accordingly issued, in obedience to which the sheriff attached the tug-boat, and summoned Johnson to appear. The boat was attached the same day the writ was issued, and was on the same day bonded, under section 15 of the statute, by Johnson, Henry A. Christy becoming his surety on the bond. Upon the return day of the writ Johnson filed a special demurrer to the petition. Thereafter, a default was asked by the petitioner because no affidavit of a defence upon the merits had been filed with the demurrer, as required by section 19 of the statute. Before the default was granted Johnson presented such an affidavit, and asked leave to file the same nunc pro tunc, as of date of the demurrer, five days previous, which was denied. James B. Carter then presented an affidavit showing that he was part owner, and interested in the suit, and requested that he might be made defendant, with leave to file an answer, under section 11. This the court denied. Johnson then moved to vacate the default, but the court refused to vacate the same, and Johnson then moved to dismiss the petition for want of jurisdiction, which motion the court overruled. The plaintiff's damages were then assessed by a jury at $300, a motion for a new trial was overruled, and the court entered up judgment jointly against Johnson, and Christy, who had given the bond. Johnson, Carter and Christy appealed, and the judgment was affirmed by the Appellate Court for the First District, and an appeal taken to this court.
Messrs. MAGEE & ADKINSON, for the appellants:
The requirement of an affidavit of merits with a demurrer is a special law of practice, and violates section 22, article 4, of the constitution. An affidavit of merits is only required in answer to a sufficient affidavit of claim. Zenas v. Strasberger, 71 Ill. 372.
A part owner ought to have been allowed to be made a defendant, and to defend as requested, before default granted, and even after. New parties may be added when necessary. Secs. 11, 12, chap. 12, and sec. 24, chap. 110; Propeller “ Hilton” v. Miller, 62 Ill. 281.
No judgment could be rendered against Christy, because he was liable only according to the condition of the bond, and because section 21, chapter 12, is invalid, being special legislation,--making sureties on attachment bonds, in attachments against water craft, liable, as no other sureties on other bonds are liable, and contrary to the conditions of their contract and the practice in courts of justice in this State.
The Attachment of Water Craft act is invalid in attempting to give a State court the right to enforce a lien in rem against a vessel above twenty tons burden, engaged in domestic commerce, duly enrolled and licensed by the United States. Exclusive jurisdiction for that purpose is in the District Courts of the United States, and the motion to dismiss should have been sustained. Sec. 2, art. 3, constitution of United States; secs. 8, 9, Judiciary act; The“ Eagle,” 8 Wall. 20; The “ Lotomana,” 21 Id. 567; The “ Belfast,” 7 Id. 646; Hine v. Turor, 4 Id. 570; The “ Moses Taylor,” Id. 411; Western v. Morse, 40 Wis. 459.
Messrs. RAE & SMITH, for the appellee:
The statute requires the bond to be made payable to the owner of the boat, if known; if not known, to the “owner or other person interested. Where the owner is known, the bond is to run to him alone; but if the bond was not proper, the defect could be reached only by a motion to dismiss, thus affording an opportunity to obviate the objection by amendment. The requirement of an affidavit of merits with a demurrer is not special legislation, any more than an affidavit in attachment. It is general to this class of cases.
The part owner who is not sued, and who has not signed the bond, has no interest in the suit after the tug-boat is discharged, for judgment could not go against him or the boat, or in any way affect his rights. The surety, in executing the bond, submitted himself to the jurisdiction of the court, the law being a part of the bond, and he is bound thereby, and estopped from denying any of its recitals.
That a judgment may be constitutionally entered against sureties on a bond, is decided in Beall v. New Mexico, 16 Wall. 539.
The case is not one of admiralty jurisdiction. It is a tort committed by a vessel and its officers upon a warehouse on land, and, as such, not within the admiralty jurisdiction. The“ Plymouth,” 3 Wall. 20, not being so, a proceeding quasi in rem only, established by State legislation, concerning torts not cognizable within the admiralty jurisdiction, can not be said to contravene any provision of the constitution of the United States, which confers on it conclusive admiralty jurisdiction.
There are various errors assigned. It is objected that the requirement of an affidavit of a defence upon the merits to be filed with a demurrer, is a special law of practice, and violates section 22, article 4, of the State constitution, respecting special legislation. We do not regard this requirement as special legislation. It is general to this class of cases.
It is alleged the petition and bond were insufficient, and that no affidavit of merits could be required until a sufficient petition and bond had been filed. We do not consider the petition defective in the particulars pointed out. The objection to the bond is, that it is conditioned to pay Johnson such costs and damages as shall be awarded for wrongfully suing out the attachment, instead of to pay the owner or other person interested in the water craft, as the statute req...
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