American Hydraulic Dredging Co. v. O. S. Richardson Fueling Co.

Mr. Justice Windes delivered the opinion of the court. The first question presented by this record and the only one which we deem it necessary to consider, is whether the Circuit Court had any jurisdiction to issue such alias attachment writ. If there was no jurisdiction to issue such alias writ, it follows that all the proceedings thereunder are void. It is conceded by the learned counsel of both sides that the question is new in this State, and we are therefore left in its determination without direct authority to guide us, the only cases cited by counsel being such as construe general attachment acts, the various water-craft acts in force in this State prior to the present act of July 1,1874, and the latter act upon the question not here involved, and cases in the United States Admiralty Courts, which show the general admiralty practice. For plaintiffs in error it is contended in substance that the water-craft attachment act of this State of July 1,1874, is a special attachment act both in form' and in substance; that the remedy provided thereby is a summary and extraordinary one; that the act should be strictly construed, and that the courts have no right or power to extend by construction its provisions beyond the letter of the statute. For defendant in error it is claimed that the water-craft act, while a statutory proceeding, is in the nature of an admiralty and equity proceeding, which differs essentially from an ordinary attachment; that there is a marked distinction between the water-craft attachment act, which is a proceeding to enforce' a lien given by the statute similar to a mechanic’s lien, is a right of property, and not a mere matter of procedure, and that the writ provided by the act is issued in aid of the enforcement of such lien, while under the general attachment act the writ of attachment is issued for the purpose of creating a lien; that the water-craft attachment writ must be levied upon specific property described in it, while the general attachment writ maybe levied upon any property of the defendant; that the water-craft act contains within itself a complete code of practice which is analogous to the admiralty practice in the United States courts, and that the practice thereunder should be in substance the same as the admiralty practice obtaining in the national courts. A reference to the water-craft act (Chap. 12, Hurd’s Rev. Stat., 1895), shows, Sec. 1, that every sail vessel, steam dredge, etc., having its home port in this State shall be subject to alien thereon for, among other things, supplies furnished for its use; -Sec. 3 limits the enforcement of the lien to five years, with a provision that it shall not be enforced to the prejudice of any other creditor, etc., unless the proceeding is instituted within nine months after the indebtedness becomes due; Sec. 4 provides for the filing of a petition in behalf of the lien claimant and the nature of the petition, which shall be verified by affidavit; Sec. 5 provides for a bond by the lien claimant in double the amount of his claim, with security, not unlike in its terms and conditions to the bond provided by the general attachment act; Sec. 6 provides that upon the filing of the petition and bond “ the clerk shall issue an attachment against the owner of such water-craft, directed to the sheriff of this county, commanding him to attach such water-craft, which writ shall be tested and returnable as other writs of attachment;” Sec. 7 provides for the form of the writ and commands the officer to attach the vessel, naming it, then to summon the owners of such vessel, naming them, to appear at the next term of the court, and to return the writ with the manner of its execution; Sec. 8 provides that the officer shall forthwith execute the writ and the manner of its execution; Sec. 9 provides that when “ such writ shall be issued and served, no other attachment shall issue against the said water-craft unless the first attachment is discharged or the vessel is bonded;” subsequent sections provide for notice by publication, “as in other cases of attachment,” for the intervening of other creditors and proceedings by such interveners, the bonding of the vessel by the owner or other persons interested, for .the appraisement of the value of the vessel seized, and the depositing with the clerk of the court the amount of the appraisement in money and order for restitution to the owner, on giving such bond or making such deposit, and for the giving of additional security in case the security should become insufficient; Sec. 19 provides for exception, demurrer or answer to the petition and proceedings of default in case of failure to except, demurrer or answer; Sec. 20 is as follows : “ Amendments may be allowed as in other cases and upon like terms and conditions, and the court may take all proceedings and make all orders necessary to fully dispose of the rights of all persons interested in the property attached, and for that purpose may add new parties whenever necessary, who may be summoned or notified, as in case of original defendants.” The remaining sections of the act provide for the proceedings in the trial, the nature of the judgment to be entered and proceedings thereunder, including the distribution of the proceeds of the sale of the attached property, and providing for an appeal or writ of error from the final judgment of the court. There is no provision whatever in the act for the issuance of any writ of attachment except that provided for by section 6. In the case of Am. T. & S. Bk. v. Pack et al., 70 Ill. App. 177, this court held, following the case of Dennison v. Blumenthal, 37 Ill. App. 385, in construing the attachment act in the case of an attachment in aid, that inasmuch as the attachment' act makes no provision for an alias writ, an alias writ of attachment in aid was void, saving, among other things, “ that proceedings by attachment are in derogation of the common law, and can only exist and be carried out by virtue of some statutory provision.” This case was affirmed by the Supreme Court (172 Ill. 192-6), in which the court say, speaking of the alias writ: “ It was a second writ issued in the same cause, the first writ having failed to produce its effect, and the additional affidavit and bond, in the absence of statutory authority for a second attachment in aid, can no more be held to change it from an alias writ to an original writ than a praecipe for a second summons in the same case can be held to call for an original summons, and not for an alias summons. * * * Ho jurisdiction was obtained by the. first writ, and the second was an alias writ for the purpose of securing what the first writ had failed to accomplish. We find nothing in the statute authorizing the issuing of an alias writ of attachment. As said by the Appellate Court, attachments are in derogation of the common law, being-creatures of statute only, and it is the rule that such statutes, except when otherwise provided, must be strictly construed.” In the Dennison case, supra, the same rule was applied by this court, in speaking of an alias attachment writ issued in a suit of original attachment, and it was there said, quoting from the case of Cariker v. Anderson, 27 Ill. 358, that “ proceedings by attachment are in derogation of the common law, deriving all their validity from statutes, and must in all essential particulars conform to their requirements.” To a like effect in principle are the following cases : Lawrence v. Yeatman, 2 Scam. 15; Haywood v. Collins, 60 Ill. 333; Merriman v. Canal Boat Butts, 15 Ill. 585; Tug Boat Dorr v. Waldron, 62 Ill. 221. The two latter cases are cases under the water-craft acts of this State of 1815 and 1857, respectively—in the former of which the court speaks of the remedy as new and extraordinary, and that the provisions of the act are not to be extended by construction, and in the latter case, while the court says that the lien was not created by the levy of the attachment upon the "boat, but that the levy was to enforce a lien created by law and existing independent of a levy, it also says that the proceedings “ are of the same character as in an ordinary attachment under the statute.” In Gindele v. Corrigan, 129 Ill. 582, which was a proceeding under the present water-craft act, the holding in the Dorr case is referred to with approval, although it is said, quoting from the case of Langdon v.Wilcox, 107 Ill. 606, hereinafter referred to, that “ a proceeding under the water-craft act is essentially in many of its features like a proceeding in rem in admiralty, though differing from the latter, it is believed,” so as to avoid a conflict of jurisdiction with the Federal courts. From an examination of the different provisions of the present water-craft act, hereinabove referred to, especially section 6, which requires that the writ of attachment issue upon the filing of the petition and bond as provided by the previous sections, and that the writ “ shall be tested and returnable as other writs of attachments,” and section 8. which provides that the writ shall be served forthwith, and section 10, which provides for notice by publication, as in other cases of attachment,, they should be construed as giving a special and extraordinary statutory • remedy for the enforcement of a lien, it is true, which is created by the statute, and that the proceedings to enforce this lien should be strictly in accordance with the letter of the statute; in other words, that the statute should be strictly construed, and that the courts have no right or power to extend the scope of the statute bv construction in any proceedings under it. If we are right in this view, it follows that inasmuch as the original attachment writ in this case was not served because the dredge was in the custody of the United States Marshal until after the expiration of the original writ and its return into court, no jurisdiction to proceed under that writ was obtained, nor is that claimed; and because there is no provision in the statute for the issuance of an alias attachment writ, the court had no power to order it issued, and consequently such a writ is absolutely void, as are also all proceedings under it. It is true, as contended by the learned counsel for defendant in error, that the proceedings under the water-craft act differ essentially from that of an ordinary attachment; that the lien thereunder is created by the act, provided the necessary facts exist, and not by virtue of the levy of the writ, and that the proceeding is in the nature of an equity or admiralty proceeding (see Langdon v. Wilcox, 107 Ill. 607, and Dorr v. Waldron, supra); but it does not, however, follow that because of this the courts may go beyond the letter of the statute or its clear intendment, and issue an alias writ, not provided for, take proceedings under it, and thus enforce a lien in a way not pointed out by the statute. The lien given and the method of its enforcement are purely and wholly statutory, without any existence, except by virtue of the statute, and can be enforced only in the way pointed out by the statute. The authorities cited indicating the practice in admiralty proceedings are therefore inapplicable, there being no provision of the act whatever, which justifies a course of procedure in analogy to the admiralty practice, which does not prescribe the particular practice to be followed. The claim of counsel for defendant in error that the alias attachment writ was justified by the provisions of section 20, is not, in our opinion, tenable. The power given by that section to the court, besides that of amendment, making new parties and providing for service on them, is to “ take all proceedings and make all orders necessary to fully dispose of the rights of all persons interested in the property attached.” This clearly contemplates that the court, before it should take the proceedings or make the orders referred to, should first have the property within its control; that is, that the property should have been already attached. That could be done only by the method pointed out by the statute, which provides for only one writ of attachment. This writ was never levied upon the dredge, but was functus officio before the court made the order directing the issuance of the alias writ. The decree of the Circuit Court is therefore reversed and the alias attachment writ quashed and all proceedings thereunder vacated and set aside.