Carson v. Steam-Boat Talma, 3 Ind. 194

3 Ind. 194 | Ind. | 1851

Blackford, J.

On the 18th of November, 1848, one Henry G. Carson filed in the clerk’s office of the Circuit Court an affidavit of his demand against the steam-boat Talma. The demand was for a debt due for work and labor, &c. ⁽¹⁾. On the same day, an attachment, founded on said affidavit, was issued against the boat. This attachment commanded the sheriff to seize the boat, and summon the owners if found, or, if not found, then the clerk, or some other officer of the boat, to appear to the suit at the then next term of the Court, on the first Monday in February, 1849. The sheriff’s return to the attachment is as follows:

“ As within commanded, I have seized and detained the steam-boat Talma, tackle, and apparel, and finding no owners in my bailiwick, I served this writ personally, by reading, on James B. Gallaghan who appears to be in charge of said boat. I also left a true copy of this writ on board said boat. November 20, 1848. John Stockwell, sheriff C. C.”

On the 6th of February, 1849, several persons, with said Carson, filed demands against said boat for debts due them for work and labor, &c.

Afterwards, at said February term, 1849, a judgment by default was rendered against the boat in favor of said creditors, and the damages on some of the claims were assessed by a jury. The demand of Carson does not appear to have been before the jury for assessment.

On the 1st of May, 1849, a bond executed by one Watson and two other persons, payable to said Carson, and approved of by the clerk of the Court, was filed in the clerk’s office. This bond was conditioned for the payment of all demands pending against the boat and which should be found due on the final determination of said cause, with the costs. Upon the filing of said bond the boat was discharged.

At the August term, 1849, on motion of the owners of the boat, the judgment by default was, for good cause shown, set aside; and, afterwards, at the same term, the Court, on motion of said owners of the boat, quashed the writ of attachment, on the ground of the insufficiency of the affidavit on which the writ issued.

The plaintiffs in error are Carsort and the other persons who filed claims against the boat.

The plaintiff's contend that the defendants, by moving to set aside the judgment by default, waived all objections to the attachment. We do not think so. The judgment by default was against the boat, and when the boat was discharged, that judgment could have no effect. The owners of the boat, after such discharge, were the only defendants, and no judgment for the plaintiffs could be afterwards rendered, except against those owners personally. Jones et al. v. Gresham, 6 Blackf. 291. The judgment by default was virtually set aside by the release of the boat. When the boat was discharged, the cause was in the same situation in which it would have been had the default not been entered. The motion to set aside the default, under those circumstances, cannot be considered as curing any defect in the attachment. There is no doubt but that an appearance to a suit may cure a defect in the process, but there are many motions which can be made before an appearance to the suit, and we think the motion now in question must certainly be one of that kind.

We are next to examine whether the giving of the bond for the purpose of having the boat discharged, was a waiver of any objection to the attachment; and we do not think it was. There have been two cases in this Court in which a question very similar to the one now before us was decided. The first of those cases was as follows: One Blaney commenced a suit by foreign attachment against one Burnett and others. The attachment issued on the 23d of June, 1829, was levied on the same day on the lands of Burnett, and was returned at the July term of the Court. At that term, notice of the pendency of the attachment was ordered to be published. In the ensuing vacation, the defendants entered special bail. At the next term, the plaintiff filed his declaration, and the defendant moved the Court to quash the attachment for the insufficiency of the affidavit arid the bond; and the motion was sustained. It was objected, on error, that the motion to quash was made too late; but the judgment was affirmed. Blaney v. Findley et al., 2 Blackf. 338. The other was also a case of attachment, in which special bail had been entered in vacation, and the Circuit Court, at the next term, on motion, quashed the attachment. It was held, on error, that the motion to quash was made in time. Root et al. v. Monroe, 5 Blackf. 594. According to both those cases, the giving of special bail in vacation did not prevent a motion at the next term to quash the writ.

R. Crawford,, for the plaintiff. C. Dewey, for the defendant.

The English decisions relative to the question under consideration are as follows: The giving of a bail-bond in vacation for the purpose of being discharged from an arrest in a civil suit, does riot prevent the defendant from moving, at the next term, to have the writ set aside for a defect in the affidavit. Jarrett v. Dillon, 1 East, 18. But if, at the term to which the writ is returnable, the defendant put in special bail, he cannot, afterwards, move the Court to quash the writ. D’Argent v. Vivant, 1 East, 330. The reason of the decision in the last cited case is, that the. defendant, by putting in special bail after he had had an opportunity to move to quash the writ, had waived the objection. That reason does not apply to the case now before us, because the motion was made, for aught that appears, at the first term after the defendants had notice of the suit, and before they had taken any step in the suit, at that term, except to have the default set aside.

The objection to the affidavit on which the attachment issued is, that it does not state the name of the person who contracted the debt. That objection is fatal. The Steam-Boat Tom Bowling v. Hough, 5 Blackf. 188.

Per Curiam. —

The judgment is affirmed with costs.

(1) This action was founded on article 2, of chapter 42, R. S. 1843, and was for labor done upon the steam-boat Talma, and for supplies and materials furnished, for the boat. Said article enacts that boats built, repaired, or equipped within the jurisdiction of this state, or by citizens of this state, without the jurisdiction thereof, which shall afterwards come within such jurisdiction, shall be liable for all debts contracted by the master, owner, or consignee, on account of work done and supplies or materials furnished, ¿so., for or towards the building, repairing, fitting, furnishing, or equipping such boats; and such debts shall be a lien on such boats, their tackle, apparel, and furniture, ¿sc. Where the sum demanded exceeds 100 dollars, if the person having such demand, shall file with the clerk of the Circuit Court where the boat is, a statement of his claim, annexing thereto an affidavit that the claim is justly due and owing, he may have a warrant of attachment issued against the boat, directing the seizure and detention of the boat, and its tackle, apparel, and furniture, by the sheriff, until the final determination of the proceedings under the attachment, and until payment is made of the demand, if judgment be rendered in favor of the claimant. Upon the return of the warrant, other creditors having demands against the boat of the description above-named, may join in the declaration, ¿so. The boat may, however, be discharged from arrest and detention, if the master, owner, or consignee shall, before final judgment, give bond and surety, to be approved of by the clerk who issued the warrant, conditioned to pay and satisfy all demands pending against the boat which shall be adjudged to be due and owing, on the determination of the cause, or if he then pay such demands, together with the costs of the proceedings. R. S. 1843, p. 778.