88 F. 290 | W.D. Mo. | 1898
This is a proceeding in admiralty instituted in this court by libelant against the steamboat L. B. X. The prayer of the libel is for the arrest of the vessel, and a monition to any and all persons claiming any interest in her, to the end that libelant may be awarded the amount alleged to be due it for work done and material furnished in her repair. Upon filing of the libel a warrant of arrest was duly issued, commanding the marshal of this district to arrest the vessel, and cause public notice of such arrest to be given by publication in the Kansas City Mali, admonishing and summoning all claimants to the vessel to appear in this court on the 4th Monday (the 25th day) of April, and interpose their claims, if any they had. The marshal, aeting under this warrant, made a seizure of the vessel at her home port, at Jefferson City, Mo.; the same being in the Central division of this district. It appears from the return of the marshal that he also delivered a copy of the warrant of arrest and of the libel to Henry Strutman, who is alleged in the libel and in the warrant to be the owner and master of the vessel. Strut-man, as such owner, now comes and files a motion in this court to dismiss the libel for the following alleged reasons: (1) Because at the time of its filing and service upon him he resided at Jefferson City, in the county of Cole, in the Central division of this district; and (2) because the vessel at the time of its arrest was at its home port, Jefferson City, and not in any county over which this court, in the Western division of the district, has jurisdiction. Counsel have argued this motion as if the suit were a proceeding in personam. While 1 do not think they are correct, yet, with a view of answering their argument, and at the samé time disclosing historically the legislation which bears on the subject for its appropriate use in disposing of the motion, I have concluded to first treat this suit as a proceeding in personam.
The question raised by the present motion is whether the division of the Western district of Missouri into four subdivisions by the act of congress approved February 28, 1887 (24 Stat. 424), has any effect
“That hereafter all suits to he brought In the courts of the United States in Missouri, not of a local nature, shall be brought in the division having jurisdiction over the county where the defendants, or either of them, reside, but if there be more than one defendant, and a part of them reside in different divisions or districts of said state, the plaintiff may sue in either division, or either district where one of such defendants resides, and send duplicate writs to the other division or district directed to the marshal of said district.”
Section 5, among other things, provides:
“That process issuing out of the courts of either division of said district shall be directed to the marshal of the district in which the division is located, and may be executed by him ór his deputies upon the party or parties against whom issued wherever found within his district.”
Comparing the language of the act of March 16, 1822, supra, creating the Missouri district, and the court therefor, with the act of February 28, 1887, supra, dividing the Westérn district into four divisions, and establishing district courts for each division, and defining their respective territorial jurisdictions, it appears that greater particularity is employed in the latter act than in the former. Language is there employed clearly creating separate jurisdictions, and a court for each such jurisdiction, and in terms confining the jurisdiction of each court, so far as personal actions are concerned, to causes
I do not understand that the foregoing conclusion is at variance with the doctrine of the case In re Louisville Underwriters, supra, relied upon by proctors of libelant. That case simply decides that when a foreign insurance company has, in compliance with the law of Louisiana, appointed an agent at New Orleans, on whom legal process might be served, and when a monition issuing out of the district court for the Eastern district of Louisiana in a suit in personam, in admiralty, was there served upon such agent, it was effective to bring
So it appears that the cases relied upon by the proctors for libelant do not affect the conclusion already reached in this case. If, therefore, this suit could be construed as a suit in personam, inasmuch as the jurisdiction of this court is assailed at the outset, and no waiver thereof made, the motion to dismiss for want of jurisdiction would necessarily be sustained.. But in my opinion this is not a suit in personam. It is true, the marshal makes return on the warrant of arrest that he executed it by delivering a copy of the writ and the libel to Henry Strutman, the owner and master of the vessel. This action of the marshal in treating Strutman as a defendant personally interested in the case cannot change the character of the suit itself. The duty of the marshal, under rule 2 of the admiralty rules, was to arrest the vessel, her engines, machinery, etc., and take the same into his custody for safe-keeping, and to cause public notice thereof, and of the time assigned for the return of process and the hearing of the suit, to be given by publication in a newspaper as required by the warrant of arrest. The fact, therefore, that the marshal treated this as a personal action, and served the owner with process in the usual form of such actions, is insignificant. The cause, as instituted, was one in rem. The process issued pursuant to the prayer of the libel was to seize the res only. It already appears that the home port of the vessel was at Jefferson City, within the territorial jurisdiction of the district court for the Central division of the Western district, and that the vessel was not at the time of the institution of the suit, or at the time of the issuance of the process, within the territorial jurisdiction of this court. The marshal, it appears, seized the boat at Jefferson City, and now has her in his custody at that place. The question now remaining for solution is whether, under the facts so disclosed, this court has jurisdiction of this cause, as a suit in rem, and may proceed therewith to a final determination. On this question, also, there is no waiver of the jurisdiction by any persons, claimants to the vessel, or otherwise. On the contrary, the owner of the vessel now appears, under this view of the case, as a claimant challenging the jurisdiction of the court over this vessel. The chronological consideration already had of the legislation creating the courts
“To compel suitors in admiralty, wlien the ship is abroad, and cannot be reached by a libel in rem, to resort to the home of the defendant, and to prevent them from suing him in any district in which he might be served with a summons, or his goods or credits attached, would not only often put them to great delay, inconvenience, and expense, but would in many cases amount to a denial of justice.’.’
This general policy is not violated by the conclusion reached in this case. No practical difficulty can be experienced in cases like this, arising in a locality where courts are so numerous and accessible, in resorting to the court with jurisdiction over the territory of the home port of the vessel, or where she can be found. I am aware that section 5 of the act of February 28, 1887, supra, provides that process may be executed by the marshal upon the party or parties against whom issued, wherever found within the district itself. This, however, cannot be held to enlarge the jurisdiction of the court as specifically conferred. It means only that process, like writs of execution, contemplated by sections 985, 986, Rev. St., and writs of subpoena, as provided by section 876, which may lawfully reach beyond the territorial jurisdiction of the court issuing it, shall be executed by the marshal. Treating this suit, therefore, as a proceeding in rem, I am constrained to hold that this court has acquired no jurisdiction, and the motion to dismiss must be sustained.