Learned v. Brown

• Citation: 94 F. 876
• Decision Date: 31 May 1899
• Docket Number: 814.
• Parties: LEARNED et al. v. BROWN, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

94 F. 876

LEARNED et al. v. BROWN, et al.

No. 814.

United States Court of Appeals, Fifth Circuit.

May 31, 1899

John D Grace, for appellants.

Guy M Hornor, for appellee Brown.

W. C McLeod, for appellee Medine Music Co.

J. A Woodville, for appellees Lagan and others.

J. H. Ferguson, for appellees Insurance Cos.

G. W. Flynn, for appellees Hotard and others.

T. M. Gill, for appellee McElroy.

Richard Peet, for appellee Healey.

From April, 1898, to the 22d day of September, 1898, the steamboat Liberty, owned by W. P. Aucoin and J. P. McElroy, resident citizens of the state of Louisiana, with headquarters at New Orleans, was running in the Bayou Lafourche trade, making frequent short trips, wholly within the state of Louisiana. On the last-mentioned date she was seized on an admiralty warrant under a libel filed by a seaman for wages. On the 24th day of October, 1898, the Liberty, her tackle, apparel, engines, etc., were sold under an order of the court, and realized the sum of $2,600. During the time the Liberty was running in the Lafourche trade, her owners incurred many debts on her account, and numerous creditors intervened in the district court, claiming to have advanced money, provisions, supplies, etc., to said steamboat, and asserting, on account thereof, a lien and privilege, under the laws of Louisiana. After much evidence, and a report by the commissioner, the district court made a decree of distribution as follows:

'This cause came on this day for confirmation of the tableau of distribution, filed by the commissioner, in conformity to the decree herein entered, and, no opposition having been made thereto, it is ordered, adjudged, and decreed that said tableau be, and the same is hereby, approved and confirmed, and that the proceeds herein in the registry of the court be distributed accordingly, to wit:

Gross proceeds deposited in registry ............................... $2,600 00 Amount paid under order of court of October 28, 1898, to marshal for keepers' fees and cost of pumping ............ $102 50 Amount paid to mariners under decree of December 10, 1898, for wages ........................................... 576 46 ------- 678 96 --------- Balance now in registry ...................................... $1,921 04 From which is to be paid: Clerk's costs ............................................. $ 89 50 Registrar's fee, $2,600 at 1 per cent ....................... 26 00 Marshal's costs ............................................ 148 80 Proctor's docket fee to H. W. Robinson ...................... 10 00 Proctor's dep. fees to H. W. Robinson ....................... 75 00 Commissioner for report and tableau ......................... 75 00 Stenographer ............................................... 382 60 ------- 806 90 --------- Balance ...................................................... $1,114 14 Claims to paid by preference: (1) To J. P. McElroy, wages as clerk ...................... $112 50 (2) To C. A. Healy, as subrogee ............................ 130 00 ------- 242 50 --------- $ 871 64

Balance to be distributed pro rata, as follows, to wit:

Names. To Receive. Samuel S. Brown ........................... $463 21 Samuel S. Brown ............................. 12 14 La. Construction & Imp. Co.................... 7 55 M. G. T. Stemple ............................. 4 44 Ins. Co. of North America ................... 23 70 St. Paul Fire & Marine Ins. Co............... 23 70 Greenwich Ins. Co............................ 23 70 Providence Washington Ins. Co................ 23 70 Ins. Co. of North America ................... 14 30 M. Waller .................................... 8 40 Donaldsonville Fdy. & Mach. Co............... 16 90 J. P. Hogan .................................. 7 50 Salmen Brick & Lumber Co..................... 20 70 A. E. Hotard ................................ 31 00 Newman & Spranley Co., Ltd................... 19 70 M. D. Lagan ................................. 11 40 A. S. Daniels ............................... 62 95 Estate Alfred Tufts ......................... 17 08 Paul D'Herete ............................... 42 17 C. W. Ward ................................... 3 00 Geo. Boning ................................. 22 50 John Laskey .................................. 4 20 Wid. A. Ferrandez ............................ 3 20 William Thomson ................................ 60 James Cummings ................................. 60 George Clevis .................................. 60 W. Thomas ...................................... 60 Cooley Williams ................................ 60 ------- $870 14 W. P. Aucoin for 1 day's witness fee ......... 1 50 ------- $871 64 $ 871 64 'It is further ordered that the piano claimed by the Medine Music Company, marked 'Schubert No. 19, 014,' as per the claim of said company herein, be restored to them, and the bond furnished by it for the release thereof canceled, and the surety thereon released.'

From this decree R. F. Learned, S. E. Rumble, and T. V. Wensel, mortgage creditors of the steamboat Liberty, and interveners for remnants, appealed to this court, assigning errors, as follows: '(1) That inasmuch as the steamboat Liberty is owned by residents of the state of Louisiana domiciled in the city of New Orleans, in said state, no lien or privilege attaches to said vessel, or against the proceeds thereof, in favor of domestic material and supply men, for materials, supplies, and money furnished said steamboat, excepting such privilege as is allowed by the statute of said state. Hence the court erred in decreeing in favor of the material and supply men (each and every one of whom in named in the judgment passed in this cause in their respective favor) for and on account of materials, supplies, and money furnished said steamboat on voyage and voyages prior to the last voyage of said steamboat. (2) That the court erred in allowing the claim of Samuel S. Brown for thirty dollars towage and one thousand one hundred and forty dollars for coal supplied, because said services and supplies were rendered and furnished upon the credit of the owners of said steamboat Liberty, and not upon the credit of said vessel, and were not rendered for, or on, or in aid of, the last voyage. (3) That the court erred in allowing judgment in favor of C. A. Healy, because-- First, said C. A. Healy did not furnish money under such circumstances or conditions sufficient to create a lien and privilege therefor on said steamboat; second, that no subrogation occurred in favor of said C. A. Healy for and on account of the money paid out by him; third, that said C. A. Healy did not furnish any money for the necessities of said steamboat for, on or during its last voyage. (4) That the court erred in decreeing in favor of M. D. Lagan, A. S. Daniels, estate of Alfred Tufts, Paul D'Herete, C. W. Ward, George Boning, and John Laskey because-- First, said interveners waived their lien and privilege, if any they had, upon said steamboat Liberty, by voluntarily releasing the seizure they caused to be effected in this cause; and, second, because the price of the materials and supplies decreed for in favor of said interveners was not on account of materials and supplies furnished during or for the necessities of the last voyage of said steamboat. (5) That the court erred in decreeing in favor of J. P. McElroy wages as clerk, said J. P. McElroy being a part owner of said steamboat during the time such services were rendered. (6) That the court erred in awarding to the Medine Music Company the piano taken off of said steamboat Liberty under order of court and erred in entering decree for cancellation of the bond furnished by said company binding themselves to return said piano or the sum of two hundred and fifty dollars (its admitted value), as the court might direct, as said piano was a part of the furniture of said boat, and, if the purchasers of said boat did not acquire the ownership of said piano at the marshal's sale in this case, then these petitioners, together with the other creditors of said vessel, are entitled to said piano, or the value thereof, for payment of their claims and demands against said steamboat. (7) The court erred in decreeing in favor of the following named insurance companies, to wit, Insurance Company of North America, St. Paul Fire & Marine Insurance Company, Greenwich Insurance Company, Providence Washington Insurance Company, Insurance Company of North America, because the insurance written by said respective underwriters was for the sole and exclusive benefit and use of the owners of the steamboat Liberty, and, further, because no lien and privilege exists in favor of said companies, or in favor of any of them, on the said steamboat, or against the proceeds thereof, for or on account of anything. (8) That the court erred in declining to decree in favor of petitioners, appellants herein who were petitioners for surplus remaining after payment of all liens and claims of prior rank to their mortgage; that, after payment of such liens and claims, a surplus should exist, which was disbursed among interveners, who were and are without lien and privilege on said steamboat Liberty, or the proceeds thereof, and therein the court further erred. (9) That the court erred in decreeing favor of interveners, who made no due tender or offer of testimony to support their claims; these petitioners, S . E. Rumble and T. V. Wensel and Samuel S. Brown, being the only parties before the court who offered testimony to support their respective claims and demands.'

S. E Rumble and T. V. Wenzel, who were the purchasers at the marshal's sale, also appealed, assigning errors as follows: '(1) That the court erred in awarding to the Medine Music Company the piano taken...