George v. Skeates & Co.

19 Ala. 738 | Ala. | 1851

DARGAN, C. J,

It is insisted that the court erred in rendering a decree in favor of the defendants in error, for the reason that the allegations of their petition do not show that the materials and labor were furnished for the use of the boat, subsequent to the first day of July preceding the filing of the petition. The act of 1836 required that all liens upon steam-boats and other water crafts, which arose by furnishing such boats with materials, labor or stores, should be enforced on or before the first day of July then next ensuing, and if not enforced on or before that day, such liens should cease to exist. — See Clay’s Dig. 139, But by the act of the 3d of February, 1848, it is enacted, that all liens upon steam-boats for furnishing materials, labor or stores, shall cease to exist, unless the same shall be enforced within six months after such materials, labor or stores, shall have been furnished. It was the manifest intention of the Legislature to allow to all who might have liens upon boats, six months within which to enforce them; and this intention, which we must carry out, is directly repugnant to that portion of tho act of 1838 requiring such liens to be enforced on or before the first clay .of July next following the furnishing of the materials, labor or stores, whereby the liens 'arose. ‘Under the act of 1830, some creditors might have nearly a year within which to enforce their liens, whilst others might have but a few days. 'This is plainly repugnant to the intention of the dct-of 1848, which allows to all six months, and six months only, within which their liens must be enforced; 'and as the intention of the act of 1848 is plainly repugnant to that portion of the act of 1886 to which we have referred, we must give effect to the act of 1848, at the expense of the act of 1836. It is true that courts will not construe a prior act to be repealed by a subsequent one, in the absence of express words of repeal, unless the provisions of the subsequent act are directly repugnant to the former. But when such repugnancy exists, the latter must prevail, and the consequence 'is, that the former is repealed to the extent that the provisions of the two acts are inconsistent with each other. As the act of 1848 allows all six months within which to enforce their -liens, it necessarily repeals so much of the act of 1836 as requires such liens to be enforced on or before the first day of July next ensuing their creation. The petition in this case shows that the materials and labor were furnished within six months previous to its being filed; it therefore‘shows a lien on the boat for the satisfaction of the claim.

It is also objected, that the court did not have jurisdiction of the amount claimed in the petition, it being for twenty-one dollars yVV It must be admitted that the petitioners could not have filed an original libel in the City Court of Mobile for an amount less than fifty dollars; for all sums under this amount are exclusively within the jurisdiction of a justice of the peace, whether the remedy be sought according to the forms of the common law courts, or the courts of admiralty; yet we think that when a boat is seized under a libel, of which the City Court has jurisdiction, we should then allow all to intervene by way of petition, without regard to the amount of their claims; otherwise those claiming sums under fifty dollars would be without remedy, for the boat being in the custody of the lawq the justice could not proceed against it, or its proceeds when sold. And if the court, having the possession of the boat, could not take cognizance of such claims, in the administration of the proceeds of the boat, the parties would lose their liens, and have to look to the personal responsibility of the owners alone. The correct rule 1 conceive' to B'e thiswhenever a court has the possession of the" rem, or its proceeds, it will do justice to all who have claims-upon it, without regard to the magnitude of their' claims,' for' having jurisdiction over the rem and the right to order its sale,the court will not pay the proceeds to one not entitled-to receive-them.

It is again contended; that the court did not have possession’ of the boat, and therefore the decree of condemnation- rendered on the libel of Pitman Saunders, as well as the decree upon the petition of the defendants in error, is erroneous.- The return of the sheriff to the process of seizure issued upon the libel of Saunders shows that he took the boat into his possession, and that the master gave bond and security, the condition of which was to pay and satisfy such decree as should be rendered on the libel. Afterwards the sheriff mado an amended return, which shows that the stipulators had re-delivered the boat to him, and that he had her in his possession. Upon these facts, it is insisted that the bond executed by the stipulators discharged the boat not only from the lien of Saunders, but also from the custody of the law; consequently the boat was not in the possession or under the control of the court at the time the petition of intervention was filed. And, not being in the possession of tho court, it was without jurisdiction over the subject matter, out of which the claim of the defendants in error is sought to be satisfied. The petition, however, alleges that the boat was i-n tho custody of the sheriff, and within the jurisdiction of the court, and these facts are not denied by the answer of the- claimant; ho only puts in issue the justice of the demand, but makes no objection to the jurisdiction of the court, founded on the fact that the boat was not in the possession of the sheriff, or within the control of the court. It may be well doubted, whether the claimant can raise this objection, after joining issue upon the merits of the libel, without an exceptive allegation to the jurisdiction of the court. — See Reed v. Owen & Martin, 9 Por. 180; 2 Ala. 738; 9 Wheat. 400. But be this as it may, as the record shows that the boat was actually sold under the order of the court, and that the proceeds were in the hands of the sheriff, we think it too late for the claimant to object that the boat was not in the legal custody of tho court at the time the petition was filed. In the case of The Schooner Balina, 1 Gallis. 75, it was urged that it did nor appear that the schooner and cargo ever were in the custody of the officers of the court, and consequently the court was without jurisdiction, but the record showed in that case, (as it does in the case before us,) that the vessel and cargo had actually been sold by tho order of the court. This was held sufficient to show the jurisdiction of the court. Indeed, I can see no ground on which a valid objection can be made to the jurisdiction of the court, for want of the possession or legal custody of the rem} when it is shown that it has has been sold by the order of the court, and the proceeds of such sale are brought into the possession or under the control of the court. It is then too late to object, for the first time, that the court did not have the possession or control of the vessel.

Upon the whole, we perceive no error in the decree, and it must be affirmed.