Billis v. The Steamboat "Henrietta"

JBy the Court Sherburne J. This is a demurrer to tbe Complaint. Tbe action is brought by virtue of a provision of tbe Statute of this Territory, is summary in its character, and is unknown to tbe common law. It is unnecessary therefore to cite authorities to sustain tbe position that in such process, tbe provisions of tbe Statute, must be substantially, if not literally complied with. Without form, registry, or any notice whatever to tbe public, a lien upon steamboats navigating tbe waters of this Territory is created by law for the discharge of all claims, which have accrued, or demands which have arisen on account of tbe same, when contracted by tbe master, owner, Agent, or consignee. That owners and subsequent purchasers may have some pro [254] tection against this extraordinary provision of law, the Statute is imperative that the Complaint shall set forth the Plaintiff’s demand in all its particulars and on whose account the same accrued. It is unnecessary to decide whether the particulars of the demand are sufficiently set forth in this case, for there is no attempt whatever in the complaint to show on whose account the demand accrued, and this must be fatal to the proceeding. There is an attempt to set up a contract with the boat, but it should appear distinctly in the complaint with what person by name, such contract was made. It is not sufficient to allege that it was made with the Clerk, or master or agent of the boat, but his name should be stated. This is a matter of substance and not of form. Masters, agents and owners of steamboats are constantly changing, and their consignees are even more uncertain. The allegation in this conpplaint is that the .contract was ‘‘ made and entered into by the proper officer or agent of the boat.” This furnishes no information whatever to its present owners or agents, and while it' may be tied up by virtue of attachment, they will stand an even chance of not knowing whether such contract was ever made, or, if made, who made it and is responsible for its violation; a branch of business in which a whole community is so largely interested as this is in steamboating, should not be thus jeopardized, unless the necessity arises from some positive provision of law. But the law in this case is otherwise. It is positive in its character and should not be frittered away by construction. The demurrer must be sustained.—Sec. 3, Scammon’s Rep., 144; 18 Missouri Reps. 558; 6 ibid, 375. The following are the points and authorities relied upon by Counsel for the Plaintiff in Error : The following are the points upon which the Plaintiff in Error relies for a revisal of the Judgment and proceedings of Court below. First. Tiro Court below, on motion of the Defendant, granted an order vacating and setting aside the warrant, on the ground [255] of alleged defection in the complaint: In this there is a manifest error, because, 1. The Complaint is sufficient in all respects.—Rev. Stat. Chap. 86; also p. 337, See. 60; 6 Missouri R., 37, 381, 552 and 555; 7 Missouri R. 213; 8 Missouri R., 358; 13 Missouri R., 519. 2. The defect (if any,) is one of form only, and furnishes no ground for quashing the writ. 3. -The Complaint in this class of cases is not in the nature of preliminary proofs for the purpose of conferring jurisdiction-to issue process, but the jurisdiction is created by the express terms of the Statute; hence however defective the Complaint, it furnishes no grounds for quashing the writ. 4. The Defendant before the notice of motion, appeared-generally in the action, and thereby waived all defects in the process and proceedings, by which he was brought into Court. After such appearance, it.was too late to object to the writ for any cause.—Rev. Stat. p. 420, Sec. 26; 2 Caine’s R., 134; 2 Cow. R., 467 and 468; 5 Cow. R., 15; 7 Cow. R., 366; 6 Wend. 594; 17 Wend., 134; 18 Wend., 581; 2 Hill. 362; 2 How. Pr. R., 241; 3 How. Pr. R., 27; 5 How. Pr. R., 233; 6 How. Pr. R., 437; 2 Burr. Pr., 11; 6 Missouri R., 50. Second. The Court below, after granting the Defendant’s motion, to vacate and set aside the said writ, together with all proceedings under the same, rendered judgment for the Defendant upon demurrer to the Complaint; in which there was also manifest error, because, 1. The Complaint was sufficient in law, and substantially conformable to the Statute, in all respects.—Rev. Stat., p. 337, and Chaps. 86 of Rev. Stat., Russell vs. St. Boat Elk; 6 Missouri R., 552; Byran vs. same boat, 6 Missouri R., 555; Camden & Co. vs. St. Boat Georgia, Missouri R., 381; Erskin & Glen, vs. S. B. Thomas, Missouri R., 37; 7 Missouri R., 213, 8 do. 358, 13 do, 519. 2. If defective, the defect is not a demurrable one.—Rev. Stat., p. 337; 3 How. Pr., 410; 1 Hill, 130; Van Sanford’s Pr., 377 and 380; 6 Missourri R., 522 and 555; vide also authorities in Mo. R. above cited. 3. Admitting the defect to be ground of demurrer, it was a [256] ■ defect inform only, and the Plaintiff should have been allowed to amend upon terms.—R. S. amend'ts, p. 9, Sec. 28; 6 Missouri R., 381; 9 Missouri R. 146 and 629. H. B. Bigelow, Counsel for Plaintiff in Error. Ames & Van Etten, Counsel for Defendant in Error. 4. The motion to vacate and set aside the writ, and all proceedings under the same, was granted, December 20th, 1864. This was equivalent to a dismissal of the action, and was a ■final determination thereof, and the subsequent proceedings upon the demurrer, including the judgment, were cor am non Judioe and void.—Bigelow vs. Stearns, 19 John R., 41; Colier vs. Luther, 9 Cow. 63; Blom vs. Burdick, 1 Hill, 139. The Points and authorities of the Defendant in Error are mot on file, and there -is no opinion on file in the Supreme ■Court, and no record of the order of that Court upon the final heai’ing of the cause.