Bierne v. The Steam Boat Triumph

2 Ala. 738 | Ala. | 1841

GOLDTHWAITE, J.

— In our opinion the judgment of the Circuit Court, sotting aside the previous judgment by default and dismissing the libel cannot be sustained.

The principal argument which has been urged against the regularity of the judgment by default, is, that no. writ of monition was ever issued by the clerk. If, in point of fact, a monition had never issued this would hot be a sufficient cause to dismiss the libel as the usual course of practice in admiralty Courts, is never to send the party out of Court so long as the proceedings can be made perfect by amendment, whether in form or substance.

The Caroline, 7 Cranch 496 ; The Adeline, 9 ibid. 244; The Dwine Pastora, 4 Wheat. 52 ; The Harmony, 1 Gallison 123; Orne v. Townsend, 4 Mason, 541.

2. If ho monition had issued, or if its service was irregular and defective, it was entirely competent for the Court to: have proceeded to direct such a course as would effectually protect the interests of those persons, who were before the Court, by directing notice to be given by publication.

3. It is evident from the nature of the proceedings in reni, that those who are interested in the thing seized, being unknown, must receive notice, either by publication, or from the notoriety of the seizure. In most cases, the latter would be the more effectual, as the custody could scarcely be changed without the knowledge of those who were connected with the previous possession. It is usual, however to give notice in some gazette, and by some other mode of publication, in most,, perhaps all of the Courts of admirality ef th&U. States, the mode of giving notice on monition is prescribed by rule, and it varies in many of the jurisdictions. (Dunlap’s Adm. 134.)

In the absence of all rules of Court, directing the practice in such cases as these, it is probable that the mere taking of the property into the possession by the executive officer of the Court, ought to be considered as notice to all the world; no in-j ury, or none to any extent, can result from this, when it is considered, that in case of default, any claimant may interpose his claim within a year and a day, according to the general course of practice. [Reed v. Owen, 9 Por. 180.] In this case however, the monition was given by publication in a gazette. It is also the general rule, that as soon as the process is commenced and the arrest of the property made, it is considered in the custody of the law, and the jurisdiction of the Court over the thing seized commences. (Burke v. Travett, 1 Mason 100.)

4. This view is satisfactory to show, that the Circuit Court should not have dismissed the libel; but it is necessary to proceed farther, and ascertain if the judgment by default was regular.

The bond taken by the sheriff in this case, is not the one described by the statute, and therefore, the lien was not discharged by it; but continued iu full force, and the Steam Boat is to be considered as yet within the jurisdiction. (The Struggle, 1 Gallison 477.)

We have already held in a former case, Livingston v. The Steam Boat Tallapoosa, 9 Porter 111, that where a bond was given, and the lien upon the Boat thereby destroyed, this of itself did not amount to the interposition of a claim, so as to form the contestatio litis. But in the present case, there was an express disclaimer made by die attornies, who bad marked their names for the defence of any intention to appear in behalf of any person. In this condition of the case, it was proper to proceed to ascertain the lien and its amount. It was competent for the Court to determine this matter for itself, or as done here, to call ,in a jury. The amount of the lien once ascertained a judgment of condemnation, an order oí sale was a matter of course.

What remedy by execution, or by preceding on the bond as a stipulation, the parties may have, is not now to be determined.

The judgment of the Circuit Court must be reversed, so far as it sets aside the previous judgment by default, and dismisses the case; and the case is remanded to the Circuit, with instructions to proceed on the judgment entered condemning the Boat for the payment, of the plaintiff’s lien.