Loring v. Illsley

• Decision Date: 01 March 1850
• Citation: 1 Cal. 24
• Court: California Supreme Court
• Parties: LORING, RESPONDENT, v. ILLSLEY, APPELLANT.

1 Cal. 24

LORING, RESPONDENT, v. ILLSLEY, APPELLANT.

Supreme Court of the State of California

March Term, 1850

March 1, 1850

THIS was an appeal from a judgment rendered by the Court of First Instance for the District of San Francisco. The facts sufficiently appear in the opinion of the Court. The cause was argued by

Gregory Yale, for the Plaintiff, and

P. A. Morse, for the Defendant.

By the Court, BENNETT, J. On the 17th day of December last, Richard S. Slaughter, Francis H. Reynolds, and Nathaniel Dean filed their several bills of complaint before the Judge of First Instance of the District of San Francisco to recover damages for certain grievances claimed to have been committed against them respectively, while passengers on board the bark Ella Frances, on her passage from Panama to San Francisco. After setting forth the cause of action, each of the complaints alleged that Frederick Illsley was part owner and master of the bark, and prayed that he and the other owners, when made known, and the bark itself might be cited to answer unto the complaint, and condemned in solido to pay the damages respectively claimed, and that the bark might be sold to satisfy the same. Summonses were therefore issued in the several suits, commanding Illsley, the master, to appear and answer the complaints. He accordingly did appear by his attorneys, and put in a several plea of the general issue on his own behalf. There was no answer put in on the part of the bark; or of either of the other owners, no process served upon them, no publication of notice requiring them to appear, and no appearance of record on their part. The causes coming on for trial, they were, by consent of parties, all tried together before the same jury, who rendered a verdict in each suit in favor of the plaintiff. Judgments were rendered for each of the plaintiffs against the "bark Ella Frances," &c., and executions upon such judgments respectively issued against the "bark Ella Frances and Illsley, master," under which, according to the return of the Sheriff, endorsed on the executions, the "bark Ella Frances" was sold to the plaintiff, James L. Loring, who was put in possession of the vessel by the Sheriff. Illsley thereupon dispossessed Loring, and has retained possession of the vessel to the present time.

On the 7th day of February last, Loring filed his complaint in the Court of First Instance, setting forth his purchase under the executions, the delivery of possession to him, his dispossession by force and violence, and praying restitution. Illsley put in his answer to this complaint and insisted therein, that he was entitled to the possession of the bark as master, and the Court, after several continuances, gave judgment against him, and required him to deliver possession to Loring, from which determination an appeal is taken to this Court.

By the judgment of the Court of First Instance, it is declared "that in the sale of the bark Ella Frances, under the order and decree of this Court and by the Sheriff of this Court, James L. Loring, the plaintiff in this proceeding, purchased all the right, title and interest of Frederick Ills-ley, the captain and defendant in the proceeding in and to said bark Ella Frances," and that Illsley had and owned at the time of the sale, "one-third part of said bark Ella Frances in his own right." It is also set forth in the judgment that Illsley, as appeared from the register, represented the vessel and the other part owners, and it is adjudged that, in the suits under which the sale took place, he made a defence for the other owners as well as for himself. The record then proceeds as follows: "The Court, therefore, orders, adjudges and decrees, that from and after said sale, and by virtue thereof, all the right, title and interest of the said Captain Frederick Illsley in and to said bark Ella Frances, her tackle, apparel and rigging, including his right to hold the possession, control and command of the same, passed to and became the right of the said James L. Loring." The judgment further orders the Sheriff to deliver possession and to summon to his assistance the power of the county for that purpose, unless before the 10th day of March, Illsley should pay to Loring the sum of two thousand dollars, the amount of the purchase money paid by the latter, with interest thereon, at the rate of five per cent. per month from the date of the sale, and also one hundred and fifty dollars for the fees of Loring's attorney, together with the costs of this proceeding.

Under this state of facts it is claimed by the counsel for the appellant: First, that the proceedings under which the bark was sold, were in substance suits in personam against Illsley, and not in rem against the vessel, and that no sale could have been made of any interest in the bark beyond the interest of Illsley as part owner. Secondly, that the master of a vessel can be displaced only by the majority of the part owners in a direct action in admiralty for that purpose; and thirdly, that Courts of First Instance have no admiralty jurisdiction. The converse of the last two propositions is insisted upon by the counsel for the respondent, and also that the original suits may be regarded as proceedings either in admiralty or at common law, and that in either view they are legal and should be sustained. It is also contended by the counsel for the respondent, that the determination of the Court below is not a final judgment from which an appeal can be taken to this Court within the provisions of the Act of February 28, 1850, regulating appeals; and, secondly, that if it be such a final judgment, the title of Loring to the bark is protected upon the ground of his being a purchaser, in good faith, while the judgments under which he holds were in force.

It becomes necessary, in the first place, to dispose of the question, whether this court can entertain an appeal from such a determination of the Court of First Instance as is presented in this case. The Act of February 28th provides, that an appeal may be taken from any final judgment of a Court of First Instance rendered since the first day of January, A.D. 1874; and if the decision of the Court below be a final judgment, an appeal lies—otherwise, not. What, then, is the distinction between an order and a final judgment? The former is a decision made during the progress of the cause,...