John Meunier Gun Co. v. Lehigh Valley Transportation Co.

Oassoday, C. J. It appears that negotiations and communications in respect to adjusting and settling the loss and damage complained of continued for more than four months prior to the commencement of this action. Eight days prior to the service of the summons the attorneys for the plaintiff informed the defendant, in writing, that they had been instructed by their client “that, unless something definite” should be “arrived at by the 1st day of November,” they would “have to institute suit.” The suit was commenced [147] November 3, 1903. November 21, 1903, and two days before tbe expiration of tbe time witbin wbicb tbe defendant was required to appear in tbe case and answer, tbe plaintiff’s attorneys, in response to something said on behalf of tbe defendant, wrote tbe letter, a portion of wbicb is quoted in tbe foregoing statement. In tbat letter tbe defendant was-plainly informed tbat the time for its “appearance in tbe suit” would expire two days thereafter, and tbat tbe same should be -extended for ten days — up to and including December 3d- — ■ on the assurance of tbe defendant’s representatives tbat there was a probability of tbe matter being settled by tbat time, but tbat they could not “consent to anything longer than tbat,” and should “proceed with the lawsuit trnless settled by that time." There could be no mistaking tbe language employed. Nevertheless, the defendant failed to appear in tbe case during tbe ten days mentioned, and did not appear in tbe case during tbe five days tbat followed prior to tbe entry of tbe judgment. Tbe rule of tbe circuit court provides: “Service of notice of appearance or retainer generally, by' ' an attorney for tbe defendant, shall in all cases be deemed an appearance.” Circuit Court Eule VIII. See sec. 2643, Stats. 1898. In tbe case at bar there was no' appearance. In fact, tbe defendant employed no attorney to appear in tbe case until after tíre judgment was entered. Not-having appeared in tbe case, tbe defendant was not entitled to any notice of tbe application for judgment. No attempt was made to excuse such default. There is no claim tbat tbe defendant failed to appear in tbe case through its “mistake, inadvertence, surprise, or excusable neglect;” much less tbat there was any abuse of discretion in refusing to relieve tbe defendant from such judgment in tbe absence of any such “mistake, inadvertence, surprise, or excusable neglect.” Sec. 2832, Stats. 1898; Boutin v. Catlin, 101 Wis. 545, 77 N. W. 910. [148] Counsel for the defendant contend that the facts alleged in the proposed answer show that the action is based upon a contract of affreightment to he performed on. the Great Lakes, with a general average adjustment, and hence are matters of admiralty, jurisdiction, of which the state courts have no cognizance; citing sec. 2. art. Ill, Const. U. S. It is true that “upon an ordinary contract of affreightment the lien of the shipper is a maritime lien, and a proceeding in rem to enforce it is within the exclusive original cognizance” of courts of admiralty. The Belfast, I Wall. 624. “The distinguishing and characteristic feature of such suit” in admiralty, said Mr. Justice Field, speaking for the court, “is that the vessel or thing proceeded against is itself seized and impleaded as the defendant, and is judged and sentenced accordingly.”' The Moses Taylor, 4 Wall. 427. The statute of the United States giving to federal courts such exclusive jurisdiction expressly saves “to suitors in all cases the right of a common-law remedy where the common law is competent to give it.”' Subd. 8, sec. 563, R. S. U. S. [U. S. Comp. St. 1901, p. 457]; The Moses Taylor, 4 Wall. 411, 427, 431; The Belfast, 7 Wall. 624, 643. These cases have been repeatedly followed by this court. Warehouse & B. S. Co. v. Galvin, 96 Wis. 523, 527, 71 N. W. 804; Reynolds v. Nielson, 116 Wis. 483, 485, 93 N. W. 455. It is a common practice for state-courts to take jurisdiction and determine questions of general average. Nimick v. Holmes, 25 Pa. St. 366; Nelson v. Belmont, 21 N. Y. 36; Libby v. Gage, 14 Allen, 261; Emery v. Huntington, 109 Mass. 431. It is enough to say that neither the complaint nor the proposed answer states a cause-of action in admiralty within the ¡orinciples of the authorities cited. By the Gourt. — The order of the circuit court is affirmed.