Otis v. Thorn, 18 Ala. 395

Otis v. Thorn

18 Ala. 395 | Ala. | 1850

DARGAN, C. J.

This suit was commenced by the defendant in error, under the act of 1844, against the steamboat Lowndes, for running down a ferry boat, having on board a stage? coach belonging to the plaintiff, whereby .the stage was sunk and lost. The plaintiff having made the oath required by the statute before a justice of the peace, he issued an attachment against the boat, her tackle, apparel, and furniture, returnable to the Circuit Court of Mobile. The sheriff seized^ this writ and had her in possession. A-fterwan Henry L. Jayne, John M. Dabney and William a replevy bond, with condition to pay such judgj be rendered in the cause in favor of the plaintiff.! terra of ihe writ the plaintiff filed a declaration, ig a declaration in an action on the case, against Rofetes&^ytis. Henry L. Jayne, two of the obligors in the replevy boira, as owners of the boat, thus making them defendants, who moved the court to set aside the declaration, but their motion was overruled, whereupon they filed the plea of not guilty,- and a jury being empannelled to try the issue, returned a verdict in favor of the plaintiff for two hundred and fifty-six dollars, upon which the court rendered judgment against Robert Otis and Henry L. Jayne alone. In the progress of the trial, the judge sealed a bill of exceptions, which shows that the defendants requested the court to charge the jury, that if there was no evidence of their ownership of the boat, they should find a verdict in their favor. This the court refused, and charged that in this action the question of ownership did not arise and need not be proved.

*398It is now contended that the declaration should have been against the boat itself, and not against the defendants as owners, and therefore, the court erred in refusing the motion to set aside the declaration. Whether the declaration should have been against the boat itself, depends upon a proper construction of the statute under which this suit was brought. Before the enactment of this act, it was frequently the case that steamboats running our rivers committed injuries which were never redressed, because the owners of such boats were unknown, or if known were insolvent. To remedy this evil, the statute, under which this suit is brought, was passed, the first section of which provides for the issuance of an attachment against any steamboat, or other water craft, that might run down, run into, run against, sink, stave, fall afoul of, or injure any other steamboat, flat boat, or other water craft, or any property on board thereof, which writ shall be directed to the sheriff, requiring him to seize and take possession of s.uch boat, her tackle, apparel, and furniture, and retain the same until discharged by due course of law. The second section makes it the duty of the sheriff to retain the boat in his possession, to answer the judgment that may be rendered, unless the master, owner, or some other person, will give bond to the plaintiff, with security, conditioned to pay the judgment that may be rendered in favor of the plaintiff with all costs, upon the execution of which the boat shall be discharged by the sheriff. The bond thus taken shall be returned to the court to which the writ is made returnable, and upon the rendition of judgment, execution is to issue against the obligors in said bond. This section also provides that the master, owner, or some other person, may give bond and security, with condition to pay the value of the boat, her tackel, apparel, and furniture, at the time the attachment is issued, or so much of the value as will satisfy the judgment that may be recovered, with all costs, which is to be returnable to the court in like manner, and execution may also issue against the obligors therein. The fourth section of the act provides that the attachment shall be returnable to the Circuit or County Court of the county, in which it'may be executed, and that the declaration and subsequent proceedings shall conform to an action on the case for the injury. These are the only parts of the act, necessary to an understanding of the question before us, and notwithstanding the declaration and subse*399quent proceedings are required to conform to an action on the case, I am entirely satisfied that the proceeding under this statute, after the issuance of the attachment, must to some extent conform to the nature of the admiralty practice. If we should hold that the rules of the common law courts should strictly govern this action, and the owner was unknown, and the boat not replevied, then no declaration could be filed, and the remedy intended to be afforded by the statute, in the case supposed, would be unavailing, for it might never appear who the owner was; Again, if we allow a declaration to be filed against the obligorá in the replevy bond, without regard to the question of ownership, then, in strict conformity with the rules of the common law, the owner could not make himself a party or plead to the action, notwithstanding his rights were involved, and thus his property might be taken from him without his having had an opportunity to be heard in court. To give full effect then to the remedy intended to be afforded by the act, and at the same time to allow the owner of the boat to interpose his claim, and protect his rights, we must hold that the proceedings must conform to the nature of the admiralty practice to this extent, that the declaration should be against the boat itself, and not against the owners, and that the owners of the boat must be allowed to interpose their claim and to defend the suit if they wish. How their claim shall be interposed, it is unnecessary to decide, but the practice in the admirality courts would furnish a clear and simple guide. By requiring the proceedings under this statute to conform to the admiralty practice to this extent, we give full effect to tile remedy intended to be provided by the act, and at the same time afford to the owners of boats an ample opportunity to protect their interest by permitting them to intervene, as in admiralty cases, and thus making themselves parties to the suit.

2. As the declaration should have been against the boat, and not against two of the obligors in the replevy bond, we think the court erred in refusing to set aside the declaration. The correct practice is this ; if process be'issued against one, and the declaration be filed against another, he maj move to set it aside, and should not be put to his plea, for he is not in court. This rule, we think, is fully sustained by the cases of Elliott v. Smith & Co., 1 Ala. 75 ; Sexton v. Roane, 7 ib. 829; and 3 Stew. 322. It is not, however, to be understood that we intend to *400decide that, when the process and the declaration are against the* same party, but there has been a misnomer in the process, which is set right in the declaration, the court will set the declaration aside on motion. That question is not raised in this case, and', therefore, it is not decided. As we think the court erred in refusing to set aside the declaration, it becomes unnecessary to-examine the other questions growing out of the bill of exceptions, as they will not arise in another trial, when the declaration1 is against the boat itself. Let the judgment be reversed, and the cause remanded for further proceedings.