No. 136 | 7th Cir. | May 21, 1895
Lead Opinion
The appellee is urgent for a rehearing, but neither the petition nor the brief by which it is supported presents any ground which was overlooked in the decision of this appeal. The opinion proceeds upon an assumption that H. l’aepcke & Co., the consignee, acted in good faith. The refusal of its president to pay the freight, in part or in whole, was not treated as a waiver of delivery of the entire cargo, notwithstanding it was made without qualification, and was dictated by some interest apparently adverse to the libelant, and was supplemented by Ills frank admission at the trial that he “would not have paid freight to Clark after receiving telephone not to pay,” if delivery liad been completed. The fact that this refusal was speedily followed by the garnishment proceedings, which were instituted by the same' attorneys who appear as xiroctors for the consignee here, was not referred to, and cennpliedty in the adverse proceedings was not impute>el to the cem-signee. Whether these assumptions could fairly be indulges! in its laven-, if the case defended upon a balancing of equities between the parties, is at least eprnsíiemable', but they are not maternal to a decision. The opinion further presumes that the state e:ourt may have had “jurisdiction over the libelant, as defemdant before it, tee adjudge a. liability to its suitors, and had juriselie-tion over (he; garnislme”; therefore the statute erf Illinois, cited in the petition as autlmrizing garnishment of indebtedness before due, did not enter into consideration, and affords no niel to the» appellee’s contention here'.
The libelant's lien for the freight, and his right to have the lien protecteel and enforced in the admiralty, are uneloubted. Under the authorities, he; was clearly entilleal to enter that jurisdiction for protection of his lien without waiting fe»r the freight to accrue; by e-eimjilete delivery, subjeert to an impeipitiem of terms if his action was premature, and caused unnecessary expense. Ilis libel was filed and memition se;rved September 15th, and etomplete jurisdiction eif the res was them established in (he district e*ourt. Until the service of the monition he was in possession of the carge>, and the1 eemsignee e-onlel not obtain it without, paying (he freight. Garnishment cernid not them be made1 effective against the vessel owner’s lieni secured by possession. The; seizure under the libel gave; (his possessieui to the district court for emforcememt e»f the lien. The; consignee then appeared in that ceiurt as claimant, gave its bond, which became a substitute for the cargo under the practice in ad
Dissenting Opinion
(dissenting). I will briefly state some of the reasons why I think a rehearing should be granted in this case. The right to the lien for the freight arose when the lumber was laden on shipboard, but that right could not mature into a present cause of action until the contract of affreightment was completed by the delivery and acceptance of the lumber at the port of destination, or until there had been a proper tender of delivery, and a refusal of acceptance, or until the delivery and acceptance, or the tender thereof, had been waived. Neither of these things had occurred at the time of the institution of this'suit. The suit was instituted before the freight had been earned; and if, pending the suit, and before trial, there had been no delivery and acceptance, no tender and refusal, and no waiver, it .would clearly have been the duty of 'the court to dismiss the libel. . If no right of action had accrued when the trial was had, certainly no decree for the libelant ought to have been entered. When the action in attachment and garnishment was brought in the state court the libelant’s cause of action had not yet matured. The state court, however, had jurisdiction of the subject-matter, and acquired jurisdiction by proper process of the parties, including both the libelant and the claimant. The fact that the freight money was not due at the time suit was brought in the state court did not malee the bringing of that suit premature. If the debt became due at or before the time of the garnishee’s disclosure, it authorized the court to proceed to judgment against him. Young v. Bank, 51 Ill. 76; Insurance Co. v. Connor, 20 Ill. App. 308. The state court, haying both the libelant and the libelee before it, rendered a judgment requiring the libelee to pay the freight money then due to the libelant into court to satisfy the debts owing by him. The libelee, under the coercion of that judgment, paid the money into court, and the same was applied in payment of the debts of the libelant. All this had occurred before the case was tried in the district court There was nothing before