Steamboat Raritan v. Smith

• Decision Date: 31 March 1847
• Citation: 10 Mo. 527
• Parties: STEAMBOAT RARITAN v. J. G. SMITH.
• Court: Missouri Supreme Court

10 Mo. 527

STEAMBOAT RARITAN

v.J. G. SMITH.

Supreme Court of Missouri.

March Term, 1847.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

CROCKETT & BRIGGS, for Appellant. 1st. The evidence is not sufficient to support the appellee's claim, either as to duration of services, value of his services, or the amount as ascertained by the verdict. 2nd. The sale of the boat under law process to Jonas Newman (defending owner), conveyed to him a clear unembarrassed title discharged of all liens, or at all events of all liens of equal and inferior class or grade. 3rd. Smith's lien, if he had any, was discharged. 4th. These liens may well be assimilated to and regarded as tacit mortgages. If so, Smith has lost his lien on the boat. 8 Johns. R. 333; Buford, &c. v. Smith, 7 Mo. R. 489. In Pennsylvania it has been held that where there were various liens filed (under the act for the benefit of mechanies, &c.), by different mechanics and others against the same house, for work and lumber, a procceding and sale under any one of them, will release it from the whole, and the purchaser will hold the property discharged of the other liens. Anshutz v. McClelland, 5 Watts R. 48; Gorgas v. Douglass, 6 Serg. & Rawle, 512; Serg. on Lien, 31, 32. For the Pennsylvania act, see Serg. on Lien, 119. If our preceding 3rd and 4th positions are good, the court erred in refusing instructions asked in conformity therewith. 5th. The services of Smith were rendered on foreign waters, and extra-territorially so far as our laws are concerned: 1. This appears from the evidence generally, the face of the note, the place where dated, &c. 2. But if that fact be not clear from the evidence and shown positively, yet the contrary does not appear. In other words, Smith has not complied with the plain requisitions of the law of Missouri by showing affirmatively (as he was bound to do), that his services were so rendered as to locality as that the law of Missouri embraced his case, and conferred a lien on him. The Missouri act confers partial and somewhat exclusive privileges on certain classes of men, who can only enjoy the benefit of laws constituting exceptions to the general rules and course of legislation, by positively and affirmatively showing themselves entitled to the benefit and peculiar privilege. It is for them to show this affirmatively and beyond doubt. If this position be correct, its consequence is, that Smith never had a lien on the Raritan. Story's Conf. Laws, 267, 268; Harrison v. Sterry, 5 Cranch, 289, 298; Ogden v. Sanders, 12 Wheat. 361, 362; act of 1838-9, concerning Boats and Vessels.

SPALDING & TIFFANY, for Appellee. 1st. The giving and refusal of instructions were not properly excepted to, and the error of the court in that respect, if any, cannot be taken notice of, on motion for a new trial. 2nd. If however the correctness of the instructions is properly before the court, then it is contended that the court did not err in giving the instructions to the jury. 3rd. The first instruction asked for defendant was properly refused, because it asks the jury to find in a certain way, if they should be of opinion that the sale of the constable was on first class claim, whereas there was no proof that they were of that class. Nor could the sale of the constable even for claims of the first class divest the lien of plaintiff, which was of the same class; at any rate under the circumstances proved, to-wit: the boat before and at the time of the sale, being in the custody of the sheriff and on this demand the constable selling with the fact known and acquiesced in by the purchaser. 4th. The second instruction of the defendant is also bad, for it assumes that the constables sold on claims of the first class. It takes that to be an established fact and so tells the jury. It also disregards the fact of this lien being levied on the boat before that sale, and the boat then being held by that levy and the sale taking place subject thereto. 5th. The only other point arising is whether the court should have granted a new trial for newly discovered evidence on Newman's affidavit. I maintain the negative. No sufficient diligence is shown by the affidavit, to find Johnstone, or to get testimony. And the other fact stated is that the plaintiff had made some admission as to the boat, since the trial. This evidence did not exist at the time of the trial. If the plaintiff's evidence was needed, why was not a petition for discovery used?

SCOTT, J.

This was a proceeding against the Steamboat Raritan, under our statute concerning Boats and Vessels. The claim was for services rendered as clerk by Smith, and constituted a lien of the first class. The plaintiff recovered judgment, from which the Steamboat appealed. On the part of the plaintiff evidence was given tending to prove the length of time the plaintiff was employed, and the value of his services. On the 7th December, 1843, the deputy-sheriff of St. Louis county, seized the boat by virtue of a warrant of that date, and continued in possession of it until the 11th of the month, when the proceeding under which the warrant issued was dismissed and the boat was seized under the process awarded on the complaint of the plaintiff in this case. Between the 7th and 11th of December 1843, two constables of St. Louis township attached the boat by virtue of sundry warrants, and levied on her orders of sale, under which and a great many others of a later date the boat was sold to ...