Brayton v. Freese

Smith, J. — This was a proceeding under the provisions of article 2, chapter 42, of the R. S., and an act amendatory thereto, approved January 13th, 1845 — Acts of 1845, p. 13 — against the canal boat Plannet. A writ of attachment was issued on the 29th of March, 1845, by a justice of the peace, upon an affidavit filed by Benjamin C. Brayton. The boat was attached, and the writ served upon George D. Brayton, the piaster of the boat, by whom the debt was contracted, and also upon Milton Freese, the master then in possession of the boat. The transcript of the justice, as modified by an agreement of the parties, shows, that, on the return of the writ, on the 4th of April, 1845, George Brayton and William Potter also filed a claim against the boat, and that the said Freese appeared before the justice, and, upon filing a bond to procure the release of the boat, as provided by the 20th section of tlie chapter of the R. S. above referred to, with Thomas Wood as his surety, applied to be admitted as defendant. The condition of the bond was, that the ob-, ligees should satisfy and pay alf the demands pending against the boat, which should be adjudged to be due and owing on the determination of the suit, with the costs, &c. The boat was accordingly released from the attachment, and, by consent of the parties, the cause was continued until the 12th of April, 1845. On the day last mentioned, the parties appeared, and the defendant then moved to dismiss the cause for want of a sufficient affidavit. This motion was overruled, and, after hearing the evidence, a judgment was rendered by the justice against Freese and Wood in favor of the [123] claimants for the amounts of their respective debts, with costs, &c. At the November term of the Tippecanoe Circuit Court, in 1845, tins judgment was reversed on certiorari. The cause was then continued, from term to term, until the 18th of June, 1846, when, on motion of the defendant, the cause was dismissed, because the affidavit filed by Benjamin C. Brayton, to procure the writ to be issued, was held to be defective. From this judgment of dismissal the plaintiffs appealed to this Court. The judgment of the justice against Freese and Wood was clearly wrong. The bond filed by them was a security which the statute authorized the master, owner, or consignee to substitute in place of the boat. It was, in most respects, similar to an appeal bond, and upon nonpayment of the proper judgment in the attachment suit, its condition would have been broken; but it did not make Wood, who was merely the surety of Freese, a party to the proceedings then in progress, or authorize the justice to render a judgment against the obligees in that suit. But when a judgment of a justice of the peace is reversed, on certiorari, by the Circuit Court, the cause is retained and stands for trial on its merits. R. S. p. 895. The reversal extends back as far as is necessary to rectify the errors committed, and, in this case, it left the parties where they stood after the appearance of Freese, the release of the boat, and the continuance by consent of parties. So far, with the exception of the alleged defects of the affidavit, there can be no objection to the regularity of the proceedings. At this stage of the case, the motion to dismiss on account of a deficiency in the affidavit, should have been overruled. It is not necessary to inquire whether this objection, if taken at any earlier period, would have been available, as all objections to the writ are waived by an appearance to the action.— Perkins v. Smith, 4 Blackf. 299. In Jones v. Gresham, 6 Blackf. 291, it was decided that, ■ when a bond is filed for the release of a boat, as in this case, judgment may be rendered in personam, and not [124] against the boat. In this case the writ was served on the master who made the contract, and also on the master who was in possession of the boat when the suit was brought. It was not necessary, however, that the process should have been served on the former, and as the statute authorizes either the master, owner, or consignee to procure a release of the boat by filing such bond, whoever of them does so must be regarded as the proper defendant against whom the judgment should be rendered. R. G. Gregory, for the appellants. G. S. Orth and E. H. Brackett, for the appellee. Per Curiam. — The judgment is reversed. Cause remanded, &c.