Merriman v. Currier

• Decision Date: 05 March 1906
• Parties: MERRIMAN et al. v. CURRIER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

191 Mass. 133

77 N.E. 708

MERRIMAN et al. v. CURRIER et al.

Supreme Judicial Court of Massachusetts, Essex.

March 5, 1906

COUNSEL

Frederick H. Nash, for petitioners.

Carver & Blodgett and Addison C. Burnham, for respondents.

OPINION

KNOWLTON C.J.

This case is before us on four bills of exceptions, and on appeals from orders overruling motions to dismiss and pleas in abatement. The suit was brought under Pub. St. 1882, c. 192 §§ 14-17 (Rev. Laws, c. 198, §§ 14-17), to enforce a lien for materials furnished in the construction of a schooner at Newburyport. A suit of this kind is a proceeding in rem, in which the jurisdiction of the court to enter a judgment depends upon jurisdiction of the property, and the only judgment that can be entered is one against the property, to be enforced by an order of sale. The character of the proceeding in this respect is apparent upon a reading of the statute, and is recognized in many decisions. Atlantic Works v. The Glide, 167 U.S. 606-623, 17 S.Ct. 930, 42 L.Ed. 296 (s. c., 157 Mass. 525-528, 33 N.E. 163, 34 Am. St Rep. 305); Briggs v. Light-Boat, 11 Allen, 157-164; Glendon v. Townsend, 120 Mass. 346-348; Tyler v Court of Registration, 175 Mass. 71-77, 55 N.E. 812, 51 L. R. A. 433. Pub. St. 1882, c. 192, § 17, above cited, provides that 'at the time of entering or filing a petition, a process of attachment against such vessel, her tackle, apparel and furniture, shall issue and continue in force, or may be dissolved like attachments in civil cases; but such dissolution shall not dissolve the lien.' Without such a process and an effectual service of it, the court can never make an effectual order for a sale of the vessel and a disposition of the proceeds. In this respect the provision of the statute differs materially from that of the next preceding chapter in reference to liens on buildings and land. In the enforcement of these liens the process required to be issued is a summons to the alleged owner of the building, and a notice of the filing of the petition to others interested. Rev. Laws, c. 197, § 12. This is because the property on which the lien is to be enforced is immovable, and cannot be taken from the jurisdiction of the court. The rights of persons interested are sufficiently protected by the entries in the registry of deeds. The statute relative to liens on vessels gives the superior court jurisdiction of suits for the enforcement of the liens. Rev. Laws, c. 198, § 17. But before the court can render a judgment in a proceeding in rem, it must have jurisdiction of the property also. For this purpose the statute directs that the court shall reach out its hand and take the property into its possession by a process of attachment on the vessel, to be issued upon the filing of the petition. This is rightly made essential. In a proceeding of this kind, the statute does not authorize a judgment in personam, and when the entire jurisdiction is to proceed against movable property, it would be futile for the court to attempt to act, without first issuing a process, to assume control of the res and bring it before the court. Until the res is before the court, there is nothing there upon which the court can exercise its jurisdiction. The res is the party, which stands in the place of the personal defendant in an ordinary action at law.

If a vessel was once within the jurisdiction of the court, and a lien then was created, and a suit was brought, and the proper process was issued whereby the court undertook to take control of the vessel, and if the return of the process showed that the vessel was no longer within the jurisdiction of the court, whether the court would have power to ascertain the amount and validity of the claim, when it could make no effectual order of sale, is a question which we need not decide in this case. Without intimating that it could, it is sufficient for our present purpose that no proper process was issued in this case. The petition for the enforcement of the lien was inserted in a writ of original summons and attachment, in which the order was to attach the goods or estate of William S. Currier and Williams E. Tilton to the value of $1,200, and summon these defendants to appear and answer to this petition. The order of attachment had no reference to this vessel. It was the usual order to attach goods and estate of a defendant in an action in personam, and it would have been obeyed by attaching any real estate or personal property of those persons. The return of the officer upon it rightly followed the precept, and showed an ordinary attachment of the schooner as the property of these defendants, to be held as security for such judgment as should be recovered against them. Subsequently a motion was made for a special precept to attach the vessel to the value of $1,200. This was made upon an affidavit, in the usual form, that the plaintiff has a good cause of action against the defendants, and a reasonable expectation of recovering a sum amounting to at least one-third of the damages demanded in the writ. A special precept was issued in the common form used to attach goods of a defendant in an action in personam, and the direction to attach, and the attachment made under it, did not differmaterially from that under the first process. A summons was also issued and served personally on the respondent...