Ridgley v. Steamboat Reindeer

• Decision Date: 31 October 1858
• Citation: 27 Mo. 442
• Parties: RIDGLEY, Respondent, v. STEAMBOAT REINDEER, Appellant.
• Court: Missouri Supreme Court

27 Mo. 442

RIDGLEY, Respondent,

v.STEAMBOAT REINDEER, Appellant.

Supreme Court of Missouri.

October Term, 1858.

1. The forty-second section of the act concerning boats and vessels (R. C. 1855, p. 313), providing that suits to enforce liens in any other than the first class shall, in St. Louis county, be commenced within six months, does not apply to causes of action that had accrued more than six months previous to the first of May, 1856--the day the Revised Code of 1855 went into effect.

2. Whether a default shall be set aside is a matter within the discretion of the courts to which application is made for that purpose.

3. Suits instituted in the St. Louis Court of Common Pleas are triable at the return term “in all cases in which the parties continued to be proceeded against at such term shall have been personally summoned for at least fifteen days before the first day of such term” (R. C. 1855, p. 1595); inquiry of damages may be made at the return term in a case of judgment of default against a steamboat.

Appeal from St. Louis Court of Common Pleas.

This was an action against the steamboat Reindeer to recover the value of a slave alleged to have been transported out of this state in said steamboat. Judgment by default was rendered against the steamboat. This default the court refused to set aside.

G. P. Strong, for appellant.

I. The court should have set aside the default and permitted the defense to be made, and should have set aside the final judgment and permitted an answer and a regular trial. The discretion of the courts in the matter of setting aside defaults must be exercised in a reasonable manner. The affidavits show that the slave was not carried away by the boat.

II. The lien against the boat was discharged by the failure of the plaintiff to bring his action within six months after the cause of action accrued. (R. C. 1855, p. 313, §42.)

III. The court erroneously refused to let the execution of the writ of inquiry be continued to the next term. There was no personal service in the case. It was a proceeding in rem.

Knox & Kellogg, for respondent.NAPTON, Judge, delivered the opinion of the court.

This suit was brought on the 10th September, 1856, on a cause of action alleged to have accrued on the 14th September, 1855. The forty-second section of the act concerning boats and vessels, in force when this suit was brought, required all suits upon liens given by the act, except those enumerated in the first class (of which this was not one), to be commenced (in St. Louis county) within six months. Before this law took effect, twelve months were allowed for suits of this character. The question is, whether the forty-second section of the act of 1856 applied to this case.

It is very clear that if this was an ordinary civil action and not one for a penalty, it was not barred, because it is not necessary in order to give reasonable effect to the statute of 1856 to give it any retrospective operation. As the statute did not prescribe any time within which suits upon past causes of action and not then barred by any existing statute should be barred, the reasonable intendment must govern that the act was designed to be entirely prospective, and was not intended to cut off causes of action which were not then barred by previous statutes. Any other construction would lead to suits clearly not contemplated by the legislature, and which, if foreseen, would...