35 Ind. 19 | Ind. | 1870
This was an action by the.appellant to-recover for the use of the wharf, at said city of Jeffersonville, by said steam ferryboat, in carrying passengers, &c., between Jeffersonville, Indiana, and Louisville, Kentucky. The suit was commenced before the mayor of the city of Jefferson-ville, where there was judgment for the plaintiff, and the said boat having been attached and released on account of a bond having been filed, there was judgment by default against the ferry company, but no order .for the sale of the boat. . The process had been served on the captain of the boat, on one of the owners thereof, and the treasurer and acting superintendent.
The company appealed to the circuit court. The case having ended in the circuit court in a judgment for the de
The first question made by the appellant is, that the complaint is insufficient. The plaintiff insists that as the first paragraph of the answer was not withdrawn with the second and third, but was on file when the demurrer to the complaint was filed and passed upon, the demurrer was rightly overruled, for this reason, if for no other, that a party cannot plead and demur at the same time.
This court held, in Hosier v. Eliason 14 Ind. 523, that “a party cannot demur and answer to the merits at the same time to the same paragraph. Hence, when this is attempted, either the demurrer or answer must give way- The rule is, in such case, that the answer overrules the demurrer and puts it out of the case.” Following this rule, we must regard the demurrer as out of the case; and as there is no assignment of error alleging the insufficiency of the complaint, no question with reference to that is before us.
The next question in chronological order relates to the sufficiency of the second and third paragraphs of the answer. They are the same that the court held to be sufficient when the case was ■ in this court before, and that were then
The appellee complains of the ruling of the circuit court in sustaining the plaintiff’s demurrer to the fourth paragraph of the answer. This was done in accordance with the mandate of this court, made when the case was here before, and we approve that ruling.
The next question is as to the correctness of the ruling of the circuit court in overruling the motion of the plaintiff for a new trial.
The claim of Bowman and of his devisees to a ferry franchise at the place in question was fully considered, on substantially the same facts as in this record, in the case of Bowman's Devisees v. Wathen, 2 McLean, 376, and in the same case on appeal to the Supreme Court of the United States, 1 How. 189. It was held in that case, in those courts, that the supposed ferry right of Bowman and his devisees had been utterly lost by non-user, and in consequence of the exercise of an adverse right by other parties. The case was decided by judge McLean in 1841, and it was affirmed by the Supreme Court of the United States in 1843. Long after this, in 1854, the defendants became the purchasers of this pretended right. It seems to us to follow, irresistibly, that if the right of Bowman and his devisees had been lost as above stated, the defendants acquired nothing by their alleged purchase of that right, and that their right to a ferry and to the free use of the wharf, if they have any, must rest upon other grounds than that which is furnished by that purchaser.
The defendants or those under whom they claim are the same persons who contested the Bowman ferry claim set up in the case in 2 McLean and 1 Howard, supra, and prior to the time of that litigation and ever since they have maintained said ferry under licenses issued to them under the statutes of the State of Indiana.
There is no evidence that the ancient Bowman ferry, which is referred to, was ever established or used.
There is no evidence that the ferry company owns any part of the wharf or any interest in it.
This court decided in this case when here before, that the fact that the city had failed to keep the wharf in good repair did not prevent her from collecting wharfage, and that the voluntary expenditure of money by the ferry company did not create any liability on the part of the city.
The statute in force at that time, and yet in force, provides that the city council shall have power “to establish and construct wharves, docks, piers, and basins, and to regulate landing places, and fix the rates of landing, wharfage, and dockage, and provide for the appointment of harbor and wharf masters and port wardens; all claims for landing, wharfage, and dockage accrued to said city shall be a lien upon the boat, vessel, or water craft, contracting, the same, and after a demand made by the wharf master upon the owner, master, clerk, or consignee thereof, and refusal of
The ordinance passed by the city council and made part of the complaint provides for the appointment of a wharf master, fixes the place of landing of the boats of the ferry company, and the rate of wharfage which they shall pay.
The remaining question has reference to the jurisdiction of the state courts. It is claimed that the subject is exclusively cognizable in admiralty. It is well settled that a claim for wharfage against a domestic vessel is not of admiralty jurisdiction, whatever may be the case with reference to others. The Phebe, Ware, 360; George B. Russel v. The Asa R. Swift, Newb. 553; Ex parte Lewis, 2 Gallis. 483. There is no evidence to show whether the boat, in this case, was or was not a domestic vessel. We are not required to presume that she was a foreign vessel, and that therefore the state.court had no jurisdiction.
As the evidence in the case is in the form of an agreement of the facts, and as there seems to be no reason for another trial in the circuit court, the judgment is reversed, with costs, and the cause is remanded, with instructions to the circuit court to render judgment for the plaintiff for the amount claimed, twenty-seven dollars, and for the sale of the boat, &c.,with costs.
Petition for a rehearing overruled.