Tuells v. Torras
| Decision Date | 23 May 1901 |
| Parties | TUELLS v. TORRAS |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A writ of error in an injunction case will not be dismissed upon the ground that the act sought to be enjoined has been completed, when the evidence offered by the defendant in error in support of his motion to dismiss is controverted in any way by the opposite party.
2. The master of a ship has such a special property in the vessel and cargo that he may bring an action in his own name, either at law or in equity, against one who wrongfully interferes with his possession of either.
3. When the master of a ship causes the same to be seized under an attachment in his own favor against the owner, such conduct will authorize the owner to terminate the employment; but until the employment is terminated by the owner the master continues to represent him with reference to the vessel and its cargo, and may assert the rights of the owner against any one wrongfully interfering with either.
4. It is essential to the validity of the levy of an attachment issued against a nonresident that the entry of levy should show that the property was levied on as that of the defendant in attachment, and this is so whether the property be realty or personalty. In the absence of such a return, the court has no jurisdiction to order a sale of the property under the attachment.
Error from superior court, Glynn county; Jos. W. Bennet, Judge.
Action by Aurelio Tuells against Rosendo Torras. Judgment for defendant, and plaintiff brings error. Reversed.
Spencer R. Atkinson and Atkinson & Dunwoody, for plaintiff in error.
Crovatt & Whitefield, for defendant in error.
Aurelio Tuells filed a petition to enjoin Rosendo Torras from unloading from the Cuban bring Pablo, lying at Brunswick Ga., a cargo of lumber which the plaintiff had received at that port for shipment to Santa Cruz, Teneriffe, and from otherwise interfering with the plaintiff's possession of the vessel or the cargo. Plaintiff alleged that he was the master of the ship, and as such was entitled to the possession of the vessel and the cargo. The court refused an injunction, and the plaintiff excepted. From the evidence introduced at the hearing it appeared that the defendant had purchased the vessel from Padrosa, who bought the same at a sale had under an order of court passed pending the hearing of an attachment which had been sued out by Padrosa against Gonzalez, the former owner of the vessel, on the ground that he was a nonresident of the state. The defendant offered in evidence the officer's entry of the levy of this attachment. This entry did not state that the vessel was levied on as the property of the defendant in attachment, and did not state anything as to his interest in it. the plaintiff objected to the admission of the return in evidence on the ground that levy was void in consequence of these omissions from the return. The objection was overruled, and the plaintiff excepted. There was no offer on the part of the defendant to amend the return, though the levying officer was sworn as a witness, and testified that he levied on the vessel as the property of the defendant in attachment.
1. A motion was made to dismiss the writ of error on the ground that the act sought to be enjoined, namely, the removal of the cargo from the vessel, had been completed, no supersedeas having been granted by the trial judge. The prayer of the petitioner was that the defendant be enjoined not only from removing the cargo, but from otherwise interfering with petitioner's possession of either the vessel or the cargo. In support of the motion to dismiss, the affidavits of the defendant in error and of two others, each of which affidavits contained a statement that the removal of the cargo had been completed, were filed. In response to the motion, counsel for plaintiff in error denied in open court the statements of fact contained in the affidavits. Upon this statement by the counsel, the motion to dismiss the writ of error was overruled. Even conceding that the statements made in the affidavits showed prima facie that all of the acts which the plaintiff sought to have restrained had been completed, these statements were denied, and this court will not determine the issue of fact thus raised. If the judge refuses to grant an injunction to prevent the commission of a given act, and the refusal to grant the injunction is brought to this court, no supersedeas of the judgment having been obtained, and it appears to the satisfaction of this court by uncontroverted evidence, that the act sought to be enjoined has been completed the writ of error will be dismissed. If an issue of fact is raised as to this matter between the parties to the case, the writ of error will not be dismissed. This is the rule which is deducible from the former decisions of this court. In Railroad Co. v. Blanton, 80 Ga. 563, 6 S.E. 584, the fact that the act sought to be enjoined had been fully completed was not denied. This was true, also, in Thornton v. Investment Co., 97 Ga. 342, 22 S.E. 987, as well as in Cranston v. Bank, 97 Ga. 406, 23 S.E. 822. In Henderson v. Hoppe, 103 Ga. 684, 30 S.E. 653, it was ruled that where, in response to a motion to dismiss the writ of error, a counter affidavit was filed, which, while not in terms admitting the statements made in the affidavit of the defendant in error, did not deny them, the writ of error would be dismissed. When it is shown prima facie to the satisfaction of this court that the act sought to be enjoined has been completed, and, in response to the motion to dismiss, the plaintiff either admits the existence of the fact as claimed by the defendant in error, or fails to deny the existence of the same, the writ of error will be dismissed. But when the existence of the fact is in any way denied, either by affidavit of the party or his counsel, or by statement of counsel in open court, the motion to dismiss will be overruled.
2. It is contended that the judge properly refused to grant the injunction in this case for the reason that the plaintiff, not being the owner of the vessel or the cargo, had no right to bring an action in his own name. The petition distinctly alleged that the plaintiff was the master of the vessel, and from the uncontradicted evidence it appeared that he was the duly-appointed master of the vessel. The master of a ship Story, Ag. (8th Ed.) § 116. "The master's general agency for the owners in relation to the ship, and his special property in her and her cargo and freight, authorize him to bring in his own name actions which the owners have in relation to the ship, her cargo or freight." Ben. Adm. Prac. (3d Ed.) § 384. See. also, 1 Cycl. Law & Proc. 851. If the master of a ship has a right to bring an action at law to recover possession of the ship from a wrongdoer, there seems to be no good reason why he should not have a right to bring a suit in equity if his rights as master cannot be fully protected without the aid of the equity powers of the court.
3. It is contended, however, that, even if it be admitted that the plaintiff was the duly-appointed master of the ship, he has abandoned the ship and the voyage by causing an attachment to be issued in his favor and levied upon the ship for wages due him and the mate. When the master of a ship causes the vessel to be seized under a process against the owner issued in his own name and at his instance, he does an act which is inconsistent with his employment and duties as master, and this act would be a sufficient reason for the owner to terminate his employment as master. Budge v. Mott, 47 Wis. 611, 3 N.W. 381. But the right to treat such an act as terminating the employment is in the owner, and, until he sees fit to terminate the employment, others must recognize...
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