Johnson v. Chicago Pacific Elevator

On the twenty-second of September, 1881, the Chicago & Pacific Elevator Company, an Illinois corporation, filed a petition in the circuit court of Cook county, Illinois, setting forth that, on the twenty-ninth of August, 1881, it was the proprietor of a warehouse on the land, in Cook county, near the bank of the Chicago river, which had stored in it a quantity of shelled corn; that on that day Jacob Johnson, a resident of Chicago, in said county, was the owner of the tug-boat Parker, of above five tons burden, used and intended to be used in navigating the waters and the canals of Illinois, and having its home port in Illinois; that the Parker, on that day, was towing a schooner, attached to her by a hawser, in the Chicago river, in said county, the schooner being under the control of the officers of the tug; and that the tug and the schooner were so negligently managed, and the schooner was so negligently towed by those having control of the tug, that the jibboom of the schooner went through the wall of the warehouse, whereby a lar e quantity of the corn ran out and was lost in the river, causing a damage of $394.38 to the petitioner. The petition prayed for a writ of attachment against Johnson, to be issued to the sheriff, commanding him to attach the tug, and to summon the defendant to appear, and for a decree subjecting the tug to a lien for such damages.

On the giving of the required bond on behalf of the petitioner, a writ of atachment was issued on the same day to the sheriff, commanding him to attach the tug, and to summon Johnson to appear on the seventeenth of October. The return of the sheriff stated that he had attached all the right, title, and interest of Johnson in and to the tug, and had served the writ on Johnson, personally, on the same day. A bond was given on the same day, executed by Johnson, as owner of the tug, as principal, and Henry A. Christy, as surety, conditioned to pay all money which should be adjudged by the court in the suit to be due to the petitioner. Thereupon a writ was issued to the sheriff, commanding him to return the attached property to Johnson, which was done

On the seventeenth of October, Johnson filed a paper called a 'demurrer and exceptions,' setting up, among other things, that the court had no jurisdiction to create or enforce a lien on the tug. On the twenty-first of October the plaintiff entered a motion that the default of the defendant be taken for want of an affidavit of merits. On October 31st, after the denial of a motion by the defendant for leave to file an affidavit of merits, the court entered of record the default of the defendant for the want of such an affidavit, and a judgment 'that the plaintiff ought to recover of the defendant its damages by reason of the premises.' At the same time the defendant entered a motion to vacate the default, insisting on the want of jurisdiction in the court.

On the same day, James B. Carter, alleging that he was when the attachment was levied, and still continued to be, a part owner of the tug, filed a motion that he be made a defendant, and be permitted to defend against the petition.

On the fifth of November, the motion of Johnson to vacate the default against him was overruled and the motion of Carter was denied. Thereupon Johnson filed a motion to dismiss the petition for want of jurisdiction in the court to enforce the lien claimed, because the tug was a steam-vessel of above 20 tons burden, duly enrolled and licensed in conformity to title L of the Revised Statutes of the United States, and was engaged in the business of domestic commerce and navigation on the navigable waters of the United States, and that exclusive jurisdiction to enforce a lien in rem on the tug was in the district court of the United States. This motion was denied.

Proper bills of exceptions were allowed to the foregoing rulings.

On the thirtieth of January, 1882, the damages were assessed by a jury at $300; and a judgment was entered in favor of the plaintiff against Johnson and Christy, for $300 and costs, on the eleventh of February, 1882. They excepted, and they and Carter appealed to the appellate court for the First district of Illinois. That court, in July, 1882, affirmed the judgment of the circuit court of Cook county, and an appeal was taken by the same parties to the supreme court of Illinois. Among the assignments of error in that court were these: That Carter was not allowed to defend; that the judgment was entered against Christy without notice or process; that the inferior courts had no jurisdiction to enforce the lien on a vessel engaged in domestic commerce between the states; that the statute of Illinois violated the constitution of the United States; and that the exclusive jurisdiction in the premises was in a court of the United States.

The statute under which proceedings in this suit took place is chapter 12 of the Revised Statutes of Illinois, entitled 'Attachment of Water-craft,' which went into effect July 1, 1874. Rev. St. Ill. 1881, p. 137. The act (section 1) gives a lien on all water-craft of above five tons burden 'used or intended to be used in navigating the waters or canals of this state, or used in trade and commerce between ports and places within this state, or having their home port in this state. * * * Fifth. For all damages arising from injuries done to persons or property by such water-craft, whether the same are aboard said vessel or not, where the same shall have occurred through the negligence or misconduct of the owner, agent, master, or employe thereon.' The following other sections of the act are material: 'Sec. 4. The person claiming to have a lien under the provisions of this act may file with the clerk of any court of record of competent jurisdiction, in the county where any such water-craft may be found, a petition setting forth the nature of his claim, the amount due after allowing all payments and just offsets, the name of the water-craft, and the name and residence of each owner known to the petitioner; and when any owner or his place of residence is not known to the petitioner, he shall so state, and that he has made inquiry, and is unable to ascertain the same; which petition shall be verified by affidavit of the petitioner or his agent or attorney. If the claim is upon an account or instrument in writing, a copy of the same shall be attached to the petition.

'Sec. 5. The petitioner, or his agent or attorney, shall also file with such petition a bond, payable to the owner of the craft to be attached, or, if unknown, to the unknown owners thereof, in at least double the amount of the claim, with security to be approved by the clerk, conditioned that the petitioner shall prosecute his suit with effect, or, in case of failure therein, will pay all costs and damages which the owner or other person interested in such water-craft may sustain, in consequence of the wrongful suing out of such attachment, which bond may be sued by any owner or person interested, in the same manner as if it had been given to such person by his proper name. Only such persons shall be required to join in such suit as have a joint interest; others may allege breaches, and have assessment of damages, as in other cases of suits on penal bonds.

'Sec. 6. Upon the filing of such petition and bond as aforesaid, the clerk shall issue a writ of attachment against the owners of such water-craft, directed to the sheriff of this county, commanding him to attach such water-craft; which writ shall be tested and returnable as other writs of attachments. Such owners may be designated by their reputed names, by surnames, and joint defendants by their separate or partnership names, or by such names, styles, or titles as they are usually known. If the name of any owner is unknown, he may be designated as unknown owner.

'Sec. 7. The writ shall be substantially in the following from:

'STATE OF ILLINOIS, _____ COUNTY-ss.:

'The People of the State of Illinois, to the Sheriff of _____     County, Greeting: Whereas, _____ (name of the petitioner)      hath complained that owners of the _____ (name of the vessel)      are justly indebted to him in the [sum of] _____ dollars,      (amount due,) for which he claims a lien upon said vessel,      and has given bond, with security, as required by law, we      therefore command you that you attach the said _____, (name      of vessel,) her tackle, apparel, and furniture, to satisfy      such demand and costs, and all such demands as shall be      exhibited against such vessel according to law; and, having      attached the same, you summon _____, (here insert the names      of owners of such vessel,) owners of such vessel, to be and      appear before the _____ court of _____ at its next term, to      be holden at the court-house, in said county, on the _____      day of _____, then and there to answer what may be objected      against them, and the said _____, (name of vessel.) And have      you then and there this  rit, with a return thereon in what      manner you have executed the same.

'Witness: _____ clerk of _____ court, and the seal thereof,     this ___ day of ___, A. D. 18 __.

_____, Clerk.

'Sec. 8. The sheriff or other officer to whom such writ shall be directed shall forth with execute the same by reading the same to such defendants, and attaching the vessel, her tackle, apparel, and furniture, and shall keep the same until disposed of as hereinafter provided. Such sheriff or other officer shall also, on or before the return-day in such writ, or at any time after the service thereof, upon the request of the petitioner, make a return to said court, stating therein particularly his doings in the premises, and shall make, subscribe, and annex thereto a just and true inventory of all the property so attached.

'Sec. 9. Whenever any such writ shall be issued and served, no other attachment shall issue against the said water-craft, unless the first attachment is discharged, or the vessel is bonded.

'Sec. 10. Upon return being made to such writ, unless the vessel has been bonded, as hereinafter provided, the clerk shall immediately cause notice to be given in the same manner as required in other cases of attachment. The notice shall contain, in addition to that required in other cases of attachment, a notice to all persons to intervene for their interests on a day certain, or that said claim will be heard ex parte.

'Sec. 11. Any person having a lien upon or any interest in the water-craft attached may intervene to protect such interest, by filing a petition, as hereinbefore provided, entitled an 'intervening petition;' and any person interested may be made a defendant at the request of himself, or any party to the suit, and may defend any petition by filing an answer as hereinafter provided, and giving security satisfactory to the court to pay any costs arising from such defense; and, upon the filing of any intervening petition, a summons, as hereinbefore provided, shall issue; and, if the same shall be returned not served, notice by publication may be given as aforesaid; and several intervening petitioners may be united with each other, or the original, in one notice.

'Sec. 12. Any person intervening to enforce any lien or claims adverse to the owners of the craft attached shall, at the time of filing his petition, file with the clerk a bond, as in the case of the original attachment.

'Sec. 13. Intervening petitions may be filed at any time before the vessel is bonded, as provided in section fifteen, (15;) or, if the same is not so bonded, before order for distribution of the proceeds of the sale of the craft. And the same proceeding shall thereupon be had as in the case of claims filed before sale.'

'Sec. 15. The owner, or his agent or attorney, or any other person interested in such water-craft, desiring the return of the property attached, having first given notice to the petitioner, his agent or attorney, of his intention to bond the same, may, at any time before judgment, file with the clerk of the court in which the suit is pending a bond to the parties having previously filed petitions against such craft, in a penalty at least double the aggregate of all sums alleged to be due the several petitioners, with security to be approved by the clerk, conditioned that the obligors will pay all moneys adjudged to be due such claimants, with costs of suit.'

'Sec. 17. Upon receiving a bond or deposit, as provided in either of the foregoing sections, it shall be the duty of the clerk to issue an order of restitution, directing the officer who attached the water-craft to deliver the same to the person from whose possession the same was taken, and said water-craft shall thenceforth be discharged from all the liens secured by bond or deposit, unless the court, or judge thereof, upon motion, shall order the same again into custody on account of the insufficiency or insolvency of the surety.'

'Sec 21. If, upon the trial, judgment shall pass for the petitioner, and the water-craft has been discharged from custody as herein provided, said judgment or decree shall be rendered against the principal and sureties in the bond: provided, that in no case shall the judgment exceed the penalty of the bond, and the subsequent proceedings shall be the same as now provided by law in personal actions in the courts of record in this state. If the release has been upon deposit, the judgment shall be paid out of said deposit.'

The supreme court of Illinois affirmed the judgment of the appellate court of the First district. 105 Ill. 462. To review the judgment of the supreme court, Johnson, Carter, and Christy have brought a writ of error.

H. W. Magee, for plaintiffs in error.

Robert Rae, for defendant in error.

BLATCHFORD, J.