74 Ga. 18 | Ga. | 1885
To this declaration and attachment the defendant filed, this demurrer: •
(1.) That, said declaration shows upon its face that the superior court of said county has not jurisdiction of the so-called cause of action therein set forth, and that the jurisdiction, if any, is vested in the United States Court, and not in the state court.
(2.) That the declaration shows an attempt to proceed against parties whose names are not alleged as unknown to deponent, either in the affidavit for attachment or the declaration.
(It will be observed that in fact the declaration does allege that the other owners are unknown.)
(3.) That said declaration in attachment seeks to reach a copaftnesship interest by levy and sale; whereas the same must have been served by process of garnishment.
(4.) That the affidavit and attachment proceedings are totally defective in law.
The court sustained this demurrer and ordered the plain
First, the ground upon which the want of jurisdiction is claimed is, that the injury for which the suit is brought is a maritime tort, and therefore the case comes within the admiralty jurisdiction, which, under the constitution and laws of the United States, is exclusively vested in the courts of that government. That state courts can exercise no jurisdiction in causes peculiarly cognizable in admiralty is so well settled that it would be a waste of time to cite authorities to the question. But there are others in which the common law courts, both of the states and of the United States, exercise a concurrent jurisdiction with the courts of admiralty. Sub-section 8 of §563, Rev. Stat. of the U. S., which is a codification of all previous congressional legislation upon the subject, confers upon the district courts of the United States authority to hear and determine “ 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; and of all seizures on land and on waters not within the admiralty and maritime jurisdiction. And such jurisdiction is declared to be exclusive, except in the particular cases where jurisdiction of such causes and seizures is given to the circuit courts.” This is decisive of the question here made, unless this case can be taken out of the provision in the first exception mentioned, “ saving to suitors the right of a common law remedy.” It is contended that the remedy afforded by attachment is not a common law, but a statutory remedy. We do not think that the legislation under consideration contemplated the distinction here insisted on. On the contrary, it merely meant to give concurrent jurisdiction to the common law courts, in cases where they had power to enforce such rights as the admiralty courts could enforce, whether the right or remedy Avas conferred by the common laAy or by statute. This question was passed
If the jurisdiction is to be taken away from the common law courts by every modification or change of common proceedings, or even by the substitution of modes of procedure other than those which obtained when the acts in question were passed, as seems to be supposed, we apprehend that the most absurd'and incongruous consequences would follow, and that this reservation of the right would have been entirely barren of results, as it is manifest that there is in this respect no uniformity 'in the remedies administered by the courts of the several states of the Union, and that in none of them do these remedies coincide in substance, much less in detail, with such as were once administered by the requirements of the common law in the courts of the country from which our jurisprudence is derived. Desty’s Federal Procedure, page 22 and citation in note; 4 Wallace, 571; 7 Id., 645; Broadwell vs. Swigert, 7 B. Monroe, 39, (S. C. 45 Am. Dec., 47.)
The day after the barque was attached, the defendant replevied it by executing a bond, with securit3r, conditioned, as required by law, to pay the amount of the judgment recovered by the plaintiff; this was duly returned to court with the attachment. The property thus attached was released from the lien of the attachment; the attachment itself was dissolved, and thereafter the action progressed as an ordinary suit at common law. Code, §3319 and citations. The declaration filed contained every necessary allegation to keep it in court; the attachment, so far as the purposes of that suit were concerned, was at an end, and the judgment dismissing it was unnecessary; but when the court went further and dismissed the declaration-founded on it, this, as we have seen, was error. The attachment, in its inception, though it might have been irregular or erroneous, was not void; had it been void, the party might
Judgment reversed.