47 F. 912 | N.D. Cal. | 1891
The libelant shipped on the barkcntine J. A. Falkenburg, at San Francisco, on the 25th day of April, 1891, as a fisherman, for a voyage to Behring sea and return, at the wages or rate of $25 for
“That said paragraph does not state any defense to libelant’s libel, as it sets up a payment before any money was due to libelant under the shipping contract alleged and admitted by respondent’s answer; and, further, that the wages sued for are exempt from attachment and execution. That in the case of Carlos A. Telles against the barkentine J. A. Falkenburg, in this court, wherein the respondents were claimants, this court sustained the contention of said claimants that no money would be due on said shipping articles until 80 days after the arrival of said vessel, and dismissed said libel, and these respondents are bound by said judgment.”
“It is universally agreed that when a judgment is recovered against the garnishee by the attaching creditor and paid, such judgment may be pleaded by the garnishee in bar of any action against him for the same debt, brought by the principal defendant, up to the amount which the garnishee has paid.”
In a note in 8 Amer. & Eng. Ene. Law, p. 1252, the law is stated to be: “Payment of the judgment protects the garnishee, even when the judgment is subsequently reversed on appeal for irregularities;” citing Duncan v. Ware, 5 Stew. & P. 119; Gunn v. Howell, 35 Ala. 144; Atch
The precise question now under consideration was involved in the Case of the City of New Bedford, in the southern district of New York, 20 Fed. Rep. 61. The court (Brown, J.) held that it—
“Ought not to disregard accomplished facts, or the equities which grow out of them. It may disregard assignments of wages by seamen, or even judgments, so long as they are executory merely. But here the payment by the defendants has been already made, and made compulsory, under a power which they could not resist. The libelant’s debt to Blake has been thereby extinguished. The debt was a just one. lío circumstances appear or are suggested showing that it was not one which the libelant was bound in conscience to pay, and one which he would presumably have paid out of these wages if received by him. He has had the full benelit of the defendants’ payment of it. These are all accomplished facts; and, in the absence of any proved circumstances of hardship to the libelant, there is manifestly no equity in liis claim to be paid in substance a second time; and such a decree would inilict manifest wrong upon the defendants. From this point of view the court might determine quite otherwise if there were any fraud, injustice, or oppression, either in the inception or in the payment of the debt to Blake; or if it absorbed the whole of the libelant’s wages, or so much of it as would distress him to do without. But there is no suggestion of any such circumstances. Without reference, therefore, to the result, in a strictly legal point of view, of tiie assumed want of jurisdiction in the Massachusetts court to attach these wages, I think a court of admiralty, acting on equitable principles, could not award the libelant, under such circumstances, ex cequo el bono, the wages already paid compulsorily for his use. The defendant has manifestly the better equity. Per Kent, C. J., in Embree v. Hanna, 5 Johns. 101-108.”
The reasons given for allowing the defendants credit for the amount paid by them under the execution against the libelant in the ease just cited are sufficient to justify this court in allowing the respondents credit, in this case, for the amount paid by them on the judgment against the libelant in the justice’s court, and I prefer to place my determination of the question upon such grounds, rather than upon the strictly legal rights urged in support of respondents’ claim. In doing so, I do not overlook the suggestion made at the hearing by the proctor for the libel-ant, that the proceedings disclosed evidence of collusion between respondents and plaintiff in the justice’s court case. I have examined the proceedings carefully, and I do not discover any evidence of collusion between the parties, but, on the contrary, I find that the respondents resisted the plaintiff in that case at every stop. To the writ of attachment they did not admit that they had any money in-their hands due to the libelant. When the writ of execution was served upon then) they made the claim that nothing was due libelant at that time. In response to the proceedings supplementary to execution it appears from the statement of facts “that the said respondents appeared upon said order of examination in propria persona, and then and there objected to paying over the said money, and testified in said court that there was no money due from them to the said libelant, and would not be due until the 30th of September.” I do not see what more respondents could have done to protect the rights of libelant and secure to him the wages that were
We come now to the question of jurisdiction of the justice’s court over libelant’s wages in the hands of the respondents. Section 4536 of the Revised Statutes provides:
“Mo wages due or accruing to any seaman or apprentice shall be subject to attachment or arrestment from any court; and every payment of wages to a seaman or apprentice shall be valid in law, notwithstanding any previous sale or assignment of wages, or of any attachment, incumbrance, or arrestment thereon; and no assignment or sale of wages or of salvage, made prior to the accruing thereof, shall bind the party making the same, except such advance securities as are authorized by this title.”
The question has been raised as to whether the libelant was a seaman within the meaning of this section. In the case of The Ocean Spray, 4 Sawy. 105, it was held that sealors engaged in taking fur-seal on the north-west coast were mariners, and entitled to a lien on the vessel for their wages; but that was a broader question than the one now under consideration. The question here is the claim of the libelant to the exemption of his wages from attachment and execution under the provisions of section 4536 of the Revised Statutes. He shipped as a fisherman on a voyage to Behring sea and return, and, instead of being paid monthly wages, he was to receive compensation for his services at the rate of $25 for each 1,000 fish caught by him. In the case of The Cornelia M. Kingsland, 25 Fed. Rep. 858, the court, in discussing the distinction between seamen and fishermen, said:
“Fishermen, in the Revised Statutes, and in all our legislation from the inception of the government downwards, have been treated distinctly under the name of ‘fishermen,’ never under the name of ‘seamen.’ Seamen in the merchant service have been the subject of numerous acts of congress, and fishermen and the fisheries the subjects of numerous other acts. They are always treated of under these distinctive designations. Sections 4392 and 4393 recognize the distinction in express terms. These two classes of mariners have never been confounded in legislation. In the Revised Statutes fishermen and the fisheries are treated of under title 51.- Title 53 treats of ‘ merchant seamen. ’ Section 4523 is found in the title relating to merchant seamen. Fishermen, although not necessarily seamen, are in practice usually seamen also, inasmuch as they usually perform seamen’s duties, so far as may be necessary, upon the particular voyage; but the object of the voyage is to catch a fare of fish. Their labors as seamen are incidental to this main purpose. Some of the fisherman may. be employed to catch fish only; others to fish and man the ship. The latter are seamen, and more: As seamen, they are indeed entitled to the benefits of the marine law applicable to seamen; such as the right to be cured at the ship’s expense. Knight v. Parsons, 1 Spr. 279. But the question here is not as to the rights of fishermen as seamen under the marine laws, but as to the intention of this particular section of the statute, which is found, hot in the title relating to ‘ fishermen,’ but in the title relating to ‘ merchant seamen.’ ”
The distinction here clearly pointed out leads me to the conclusion that the libelant was not a seaman, within the meaning of section 4536 of the Revised Statutes. But there is still another limitation to the ex-
The libelant claims further that the wages were not due at the time . they were paid over by the respondents to the plaintiff under the proceedings supplementary to execution in the justice’s court. The contract was that the wages were to he settled within 80 days after arrival. The voyage terminated with the arrival of the vessel at San Francisco. The contract did not absolutely postpone the settlement for a period of 80 days after such arrival, but, for the benefit of those employed, it placed a limitation of 80 days within which time the settlement was to be made. The wages were sure to become due and payable within 80 days after the arrival of the vessel. There was no contingency involved that could defeat the debt. “It is now a very generally recognized rule of law that a debt existing in favor of the garnishee, not due at the service of the writ, but which is sure to become clue at a future period, may be reached both under execution and attachment. * * * If * * “ the person performing services is entitled to compensation free from any contingency, though the time for payment has not arrived, there is an absolute debt, and, consequently, a proper subject for garnishment.” Freem. Fx’ns, § 165. This being the law, the justice’s court obtained jurisdiction over libelant's wages in the hands of respondents, notwithstanding the objection that they were not due at the time of the appropriation.
Proctor for libelant claimed at the hearing that the amount paid as accruing costs was excessive. The amount charged is $7.75. Respondents have filed a memorandum, from which it appears that the amount actually paid was $8, or 25 cents more than was charged. It is difficult to determine from the state statute what costs were legally chargeable hi the case. In some trifling particulars the bill appears excessive, but this is not a jurisdictional fault. Bigalow v. Barre, 80 Mich. 1. Having determined that the libelant was equitably, if not legally, bound by the judgment and the proceedings supplementary to execution, the question of costs is not open for examination. It follows, therefore, that payment of $117.50, and accruing costs, $7.75, made by respondents, must be allowed as credits in their favor, and that the tender made at the time the answer was filed was sufficient. The libelant is entitled to the sum of $50.25 deposited in court, and a decree will be entered accordingly.