CASES

IN THE

SUPREME COURT

OF

LOUISIANA.

STATE ex rel. COONS V. THE JUDGE OF THE THIRTEENTH JUDICIAL

DISTRICT.

(23 La. An. 29.)

Transfer of cause to federal court.

The application of a party to remove a cause to the circuit court of the United States is analogous to a plea to the jurisdiction of the State court, and, when granted, the party against whom it is taken has the right to appeal. The case would be different if the application to remove is refused. In the latter case no irreparable injury would follow, and the appeal would not be allowed. (See note, 7 Am. Rep. 507.)

A mandamus will therefore issue, on application from the supreme court directing the judge of the district court to grant an appeal from an order transfer ring a cause to the circuit court of the United States, if the case is in other respects appealable.

APPLICATION for mandamus.

Thomas P. Farrar, for relator.

A. N. & H. N. Ogden, of counsel for the judge.

HOWE, J. The oase of Martin Cobb & Co. v. Coons was commenced in February, 1867, in the district court of Madison parish.

State v. The Judge of the Thirteenth Judicial District.

On the 16th day of May, 1870, Thomas J. Martin filed a petition, verified by his affidavit, stating that he is one of the plaintiffs; that he is sole owner of the claims in suit; that he resides in the State of Kentucky, and that he has reason to believe, and does believe, that from local influence and prejudice he will not be able to obtain justice in this (the district) court. He prayed that the cause might be removed to the circuit court of the United States, under the provisions of the act of congress of March 2, 1867. His co-plaintiffs did not join in this request, nor did he state that he or they are citizens of any other State than Louisiana. 18 How. 137.

The judge granted the order of removal, and, on the day following, the defendant Coons applied for a suspensive appeal, which was refused, and thereupon a mandamus was applied for.

We had occasion to say, in the case of Rosenfield v. The Adams Express Company, 21 An. 233, that an application to remove is analogous to a plea to the jurisdiction, and that, if granted, an appeal would lie. The remark was, perhaps, not entirely necessary to the decision of that case, but we do not find any reason, on the most careful examination, to doubt its correctness.

In Beebe v. Armstrong, 11 Martin, 440, this court entertained such an appeal, and reversed the order of removal. In Duncan v. Hampton, 12 Martin, 92, a similar appeal was entertained, and the question of the right of appeal seems to have been discussed; for, alluding to a difference of opinion on the merits, Judge MATTHEWS said: "As we are unanimously of opinion that the judgment (of removal) rendered by the district court is a decision from which an appeal ought to be sustained, it is unnecessary to investigate that part of the cause." Judge MARTIN was in favor, on the merits, of reversing the order of removal. There are three cases where similar appeals were entertained: Louisiana State Bank v. Morgan, 4 N. S. 344; Fitz v. Hayden, id. 653; and Fisk v. Fisk, id. 676. In the first of these the order of removal was reversed. In Higgins v. McMicken, 6 N. S. 712, the court declared that it had several times entertained jurisdiction of such appeals, and added:

"Such decisions or judgments were properly considered as final, in consequence of sustaining the petitions for removal. A request to change the jurisdiction of a suit from a State court to one of the United States, under the law of congress, is analogous to a plea to the jurisdiction of the court in which the proceedings commenced;

t

Southern Dry Dock Co. v. Steamboat J. D. Perry.

and when a removal is ordered, the plaintiff would be without remedy against such order, unless by appeal."

In-Stoker v. Leavenworth, 7 La. 390, a similar appeal was entertained, and the "judgment" of removal affirmed; and the same action was had in Franciscus v. Surget, 6 Rob. 33.

We cannot undertake to disturb this well-settled jurisprudence.

It is therefore ordered that the mandamus issued herein be made peremptory.

SOUTHERN DRY DOCK Co., appellant, v. STEAMBOAT J. D. PERRY, CAPTAIN BAIRD AND OWNERS.

(23 La. An. 39.)

Jurisdiction-proceedings to enforce claim against vessel.

▲ proceeding by attachment or provisional seizure, when taken out against a vessel belonging to a port of one State, while lying in a port of another State, to enforce a claim for repairs and materials furnished at the latter port, is a proceeding in rem or in admiralty, and the State courts are without jurisdiction, notwithstanding an act of the legislature authorizing such a proceeding. But in such a case, where the master has also been personally cited and is sought to be made liable in his individual capacity, the State courts, although without jurisdiction to proceed in rem by provisional seizure, have jurisdiction of personal action.

APPEAL from fifth district court, parish of Orleans. The opinion states the case.

Bentnick Egan, for appellant.

Given Campbell, for appellees.

HOWE, J. The petition of plaintiff alleged "that Capt. A. Baird and the owners of the steamboat J. D. Perry, a boat engaged in carrying freight and passengers for hire," were indebted to petitioner in solido, in the sum of $1,029.30, for work and materials furnished in making repairs to the said steamboat; and after claiming a privi lege on the vessel, they prayed that a writ of provisional seizure might VoI.. VIII. - 74

Southern Dry Dock Co. v. Steamboat J. D. Perry.

issue against her, and that Capt. Baird and the owners might be cited and condemned to pay the plaintiff the sum claimed with interest," and with privilege on the steamboat J. D. Perry."

The writ was issued and the vessel seized. Baird was cited as captain, to answer the petition, and an answer was filed in the form of a general denial by "the defendants." A supplemental petition was afterward filed by the plaintiff, averring that Baird was sole owner. No contestatio litis was formed on this, but as evidence was offered and received, without objection, to prove the ownership by Baird, we will consider the case as if the vessel was the property of Baird, the personal defendant.

A peremptory exception was filed on behalf of the defendants, generally, to the jurisdiction of the court, on the ground that the proceeding was one in rem to enforce an admiralty claim against the vessel for repairs and materials. A rule was also taken to set aside the writ of personal seizure for the same reason, and the exception and rule and the merits were tied together. The court maintained the exceptions and dismissed the suit, and the plaintiff appealed.

From the manner in which the case has been conducted, it becomes necessary to consider it in two aspects: First, as to the validity of the writ of provisional seizure (and this must depend on the original petition and affidavit); and second, as to the right to a personal judgment against Baird.

1. The question of validity of the writ of personal seizure, con. sidered from the point of view of the original petition and affidavit, is one that has been fruitful of discussion in the State and national tribunals. By section 2 of article 3 of the constitution of the United States, it is provided that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction; and, in execution of this broad provision, it is declared by the act of congress of September 24, 1789, that the district courts of the United States "shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, * saving

to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it." The wisdom of these provisions is apparent, yet no one familiar with the subject can have failed to observe a constant tendency to evade or infringe them, and in every commercial city of our sea-coast the ships and vessels of other States and nations have been repeatedly subjected to annoyance in violation of these salutary rules.

Southern Dry Dock Co. v. Steamboat J. D. Perry.

The supreme court of the United States, whose rulings on this subject are necessarily of highest authority, has had occasion recently to condemn this increasing abuse and to formulate the true doctrine in the premises. In the case of The Moses Taylor, 4 Wall. 411, the court said:

"The distinguishing and characteristic feature of such suit” (in rem in the admiralty), " is, that the vessel or thing proceeded against is itself seized and impleaded, as the defendant, and is judged and sentenced accordingly. It is this dominion of the suit in admiralty over the vessel or thing itself, which gives to the title, made under its decrees, validity against all the world. By the common-law process, whether of mesne attachment or execution, property is reached only through a personal defendant, and then only to the extent of his title. Under the sale, therefore, upon a judgment in a common-law proceeding, the title acquired can never be better than that possessed by the personal defendant. It is his title, and not the property itself, which is sold. The statute of California, to the extent in which it authorizes actions in rem against vessels for causes of action cognizable in the admiralty, invests her courts with admiralty jurisdiction."

And to this extent the statute was declared to be void.

In the case of The Hine, 4 Wall. 555, the same tribunal, in declaring the nullity of a statute of the State of Iowa, by which suits substantially in rem against vessels, for causes cognizable in the admiralty, were authorized, and alluding to the clause of the act of 1789, which saves to suitors "the right of a common-law remedy where the common law is competent to give it," said:

"It could not have been the intention of congress, by the exception in that section, to give the suitor all such remedies as might afterward be enacted by State statutes, for this would have enabled the States to make the jurisdiction of their courts concurrent in all cases by simply providing a statutory remedy for all cases. Thus, the exclusive jurisdiction of the federal courts would be defeated."

In the case of The Belfast, 7 Wall. 624, the same court held language which is especially applicable to the case at bar. Alluding again to the "common-law remedy," which is saved to the suitor and which is now urged before us as a justification for the issuance of the writ of provisional seizure in the present suit, it said:

"Proceedings, in a suit at common law, on a contract of affreight. ment, are precisely the same as in suits on contracts not regarded as