Donnell v. Starlight

Morton, J. Several questions arise in this case. 1. The respondents Hanson and Harding contend that the superior court has no jurisdiction of the case, because the subject matter of the petition is within the exclusive maritime jurisdiction of the courts of the United States. It is settled by the authorities, that the courts of a state have jurisdiction to enforce liens, created by its laws, for labor and materials furnished in constructing or repairing domestic vessels. Gen. Sts. c. 151. Maguire v. Card, 21 How. 248, 250. The Belfast, 7 Wallace, 624. McMonagle v. Nolan, 98 Mass. 320. Foster v. The Richard Busteed, 100 Mass. 409. If the steamer Starlight then was in her home port, the lien of the plaintiffs can be enforced in the superior court. The steamer was registered at the port of Bath in the name of Hanson and Harding as owners; but the facts show that their real interest in her was that of mortgagees. Spear was the mortgagor and general owner, and as such had the exclusive possession and control of her until after these liens had attached. The facts, that the builder’s certificate was made to them, and that the ship was registered in their name, are not conclusive proof of ownership. In Howard v. Odell, 1 Allen, 85, and Blanchard v. Fearing, 4 Allen, 118, the defendants were allowed to defend against a claim for supplies furnished the ship, by showing that they were in fact mortgagees, and not owners, although they had an absolute bill of sale and the registry was in their names. Spear was the owner of the steamer • he resided in Boston; she was in Boston under his sole direction ; and under these circumstances we are of opinion that the [231] wsidence of her owner determines the home port of the vessel, and that under the statutes the superior court has jurisdiction. White’s Bank v. Smith, 7 Wallace, 646. Weaver v. The S. G. Owens, 1 Wallace, Jr. 359. Hill v. The Golden Gate, 1 Newberry, 308. 2. The respondents also contend that the superior court has no jurisdiction, because the attachment was illegal, being in a process illegally issued and made returnable at a time not authorized by law. The fifteenth section of chapter 151 of the General Statutes provides two modes in which proceedings to enforce a lien may be commenced : “ The petition may be entered in court or filed in the clerk’s office in vacation, or it may be inserted in a writ of original summons, with an order of attachment, and served, returned and entered as other civil actions.” When the first mode is adopted, the same section provides that “ at the time of entering or filing the petition a process of attachment against such ship or vessel, her tackle, apparel and furniture, shall issue,” and the subsequent proceedings shall be “ as prescribed in chapter 150 for enforcing liens on buildings and land, so far as the same are applicable.” Section 14 of chapter 150 provides that 11 the court in which the petition is entered, shall order notice to be given to the owner of the building or structure, that he may appear and answer thereto at a certain day in the same term, or at the next term, by serving him with an attested copy of the petition, with the order of the court thereon, fourteen days at least before the time assigned for the hearing.” The petitioners in this case adopted the first mode above named of commencing their proceedings. They entered their petition in court during a term thereof, and took out a process of attachment, which was duly served by a seizure of the vessel. Thereupon the court acquired jurisdiction of the vessel and of the case. After the entry of the petition, the court may order notice to be given to the owner in the same order directing the attachment, as was done in this case; or may order such notice at any future time before the hearing upon the merits takes place, and such order may be returnable at a certain day in a [232] pending term, or at the next term. Rockwood v. Walcott, 3 Allen, 458. The fact, therefore, that the order issued in this case was made returnable at a day in the same term, and not at the next term, is not a ground of objection to it. The fallacy in the respondents’ argument upon this point consists in assuming that the petition was inserted in a writ of original summons, which could only be made returnable at a regular term. But if the order of notice had been defective in all the particulars claimed by the respondents, it would be immaterial. It was not necessary, to give the court jurisdiction, that any order of notice to the owner should have been inserted in the process of attachment ; if the petition was duly entered and the process of attachment duly issued and served, the jurisdiction attached, and would not be defeated by any insufficiency of the notice. The court has full power at any time before the hearing to order such notice to the owner as shall be deemed proper and effectual. Gen. Sts. c. 150, §§ 15, 16. In this case the superior court did, at October term 1868, order a new notice to the respondents, which was duly served upon them. This cured any defects in the original notice, and could not have the effect to oust the court of jurisdiction. The objection that this new order was not legally served cannot prevail. The respondents being absent, the court had power to order such notice as under the circumstances of the case was considered most proper and effectual; the sufficiency of the notice was for the decision of the superior court, within its discretion, and is not open to exception. Gen. Sts. c. 150, § 15. 3. We have no doubt that the labor and materials, for which the petitioners claim their liens, were furnished in the “ construction or repairs” of the steamer, within the meaning of the Gen. Sts, c. 151, § 12. The Ferax, 1 Sprague, 180. 4. One other question is raised by the report. The respondents claim that, being in law mortgagees, their mortgage has priority of the plaintiffs’ lien. If these respondents can be considered as standing in the same position as parties having a conveyance in mortgage duly recorded, we are of opinion that their claim would not have preference of the lien. This point was decided [233] in The Granite State, 1 Sprague, 277, in which it was held that a lien for supplies and repairs has preference of a prior mortgage, and such lien was enforced after the mortgagee had taken possession. We see no reason to doubt the correctness of this decision. The statute provides that the “ lien shall be preferred to all others thereon except mariners’ wages.” Gen. Sts. c. 151, § 12. The labor and materials furnished increase the value of the mortgagee’s security, and inure to his benefit. The manifest purpose of the statute is, to give to' laborers and material-men an interest in the vessel to the extent to which they have added to its value, which has precedence of all other liens and incumbrances except mariners’ wages. Judgment for the petitioners.