Swain v. Knapp
21 N.W. 414
Minn.
1884
Check Treatment
Berry, J.

From the pleadings in this case it appears that the plaintiff owns one-third and defendant two-thirds of the Jennie Hayes, a steamboat registered at the port of St. Paul, and plying upon the St. Croix and Mississippi rivers; that defendant has for some years been running the boat for himself and plaintiff; that there is a difference between them as to the state of the accounts of her earnings and expenses; that plaintiff is dissatisfied with defendant’s management of the boat and its business, and apprehensive of loss from its continuance; that he desires an accounting between them in respect to the earnings and expenses of the boat, a partition of interests through a sale, (no other partition being practicable,) and that whatever balance be found due him upon the accounting be paid out of defendant’s share of the proceeds of sale. Upon plaintiff’s motion, *431judgment upon the pleadings was rendered for an accounting, for a sale of the boat for the purpose of partition, and appointing the sheriff a receiver to take possession of her and her belongings, sell the same, .and pay the proceeds into court to await further orders.

This action was brought in the district court for the county of Washington. The defendant (appealing) contends that the court had no jurisdiction to render the judgment, because the action is a “civil cause of admiralty and maritime jurisdiction,” and therefore within the exclusive cognizance of the district court of the United States, under the eighth subdivision of U. S. Rev. St. § 563, which (except in cases not here important) imposes upon the federal district courts exclusive jurisdiction “of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it.”

The defendantis unquestionably right in his position that this saving is of a common-law remedy, and not merely of a remedy in a common-law court, (The Moses Taylor, 4 Wall. 411; Spear, Fed. Jud. 81,) and that the remedies sought in this action are not common-law remedies. The directing of an accounting between persons occupying the relations of plaintiff and defendant, the appointment of a receiver, .and the partition of personal property by sale or otherwise, are not common-law but equitable remedies. Judd v. Dike, 30 Minn. 380; Freeman on Cotenancy, § 426; Pom. Rem. § 221; 3 Pom. Eq. Jur. § 1379. They are, therefore, properly sought in the present action, (Judd v. Dike, supra,) and properly given by the judgment appealed from, unless, relating as they do to a vessel plying upon the navigable waters of the United States, they are such as are afforded in “civil causes of admiralty and maritime jurisdiction,” or — what must-be an equivalent expression — in “civil causes,” in the words of the federal judiciary act, (U. S. Rev. St. § 563,) or “civil cases,” in the synonymous expression of the federal constitution, (article 3, § 2,) in courts of admiralty. If the remedies sought in this action are not afforded in admiralty, then the subject-matter of the action is not within admiralty jurisdiction. Spear, Fed. Jud. 96.

The following propositions appear to be well settled: First. A court of admiralty will not direct the sale of a vessel for the purpose of ef*432fecting a partition between different owners, except (1) as between two persons, each of whom owns one-half of the vessel, in which case, since the rule giving control to a majority interest cannot operate, the court will interfere out of regard for the public interest in commerce, and navigation; or except (2) (as some authorities hold) upon the application of a majority interest in the vessel, under special circumstances. Steamboat Orleans v. Phœbus, 11 Pet. 175; Tunno v. The Betsina, 5 Am. Law Reg. 406. Second. A court of admiralty will not order an accounting as a separate and independent mode of relief, but only as incident to other matters of which it has admitted cognizance. Curt. Jur. U. S. Courts, 273; Tunno v. The Betsina, supra; Kellum v. Emerson, 2 Curt. C. C. 79; Steamboat Orleans v. Phœbus, supra; Davis v. Child, Davies, (2 Ware,) 71; The Larch, 3 Ware, 28. Third. It hardly need be added that the appointment of the receiver in this case is a mere incident of the sale, and hence, of course, something of which a court of admiralty would have no jurisdiction, in the absence of jurisdiction to order the sale itself. From these three-propositions it follows that the subject-matter of the present action— the remedies sought and afforded in it — do not fall within the purview or scope of civil causes or cases in admiralty and maritime jurisdiction, and hence that defendant’s objection to the judgment is not. well taken.

Judgment affirmed.