Monroe v. Brady , 7 Ala. 59 ( 1844 )

GOLDTHWAITE, J.

— 1. The objection to the proceedings, that the justice determined the case in the city of Mobile, when he was elected for a beat without the corporate limits, is in effect asserting that the trial was had before a person who was entirely unauthorized to act; conceding to this objection its most imposing aspect, we do not think this question can be raised in this way. If the justice was unauthorized to act in the premises he was a trespasser, and as such is liable to the party for his illegal act; but by the appeal the judicial character of the justice is admitted, inasmuch as it establishes a legal connection between him and the appellate Court. If he is not a justice of the peace it is clear that no appeal will lie.

2. The objections to the sufficiency of the libel came too late in an appellate Court. [Witherspoon v. Wallis, 2 Ala. Rep. 667.]

3. But it is contended, the proof shown by the bill of exceptions establishes that, the plaintiff has no right to pursue this boat, inasmuch as it is a coasting vessel, and in the employ of the United States by carrying the mail. The act of 1S36, (Clay’s Dig. 139, § 22,) is much more general in terms than that of 1824, (Ib. 527, § 5, 6, 7,) and gives a lien to be enforced by libel, to all persons who shall furnish materials, la-: borers, or slaves, for the use of any steamboat or other water craft within the State of Alabama. And the act of 1841, (Ib. 340, § 26) expressly gives the same jurisdiction to justices of the peace to the amount of 50 dollars. It is doubtless true', that on account of this boat being a coasting vessel, the admiralty Courts of the United States may have concurrent jurisdiction, but we are not certain that this necessarily ousts the jurisdiction thus expressly given to our own Gourts.

4. Nor is the circumstance, that this boat was employed in carrying the mail of the United States, one from which its owners can claim exemption from the ordinary mode of pro-ceding to which all other persons are subjected.

5. The omission to consolidate the several causes is not an error which is susceptible of revision here, though doubtless the consolidation ought to have been made by the Circuit Court, as it would at least have saved much expense to the parties.

6. We cannot infer that the proof was insufficient to establish the lein, or show the liability of the boat. If it was as is supposed, the party should have shown it by the proper exceptions.

7. The remaining assignment of error questions the legal sufficiency of the judgment, because no condemnation was entered against the boat, and, instead, a judgment in rem is rendered against the parties to the appeal bond.

It certainly is true, that this judgment is irregular, and should have been for the condemnation of the boat, inasmuch as the boat was not discharged from the lien, by the claimant, entering into the ordinary stipulation provided for by the act.— [Clay’s Digest, 139, § 22.] But it appears that Monroe took the appeal in behalf of the owners of the boat and gave bond, with Tardy, conditioned to prosecute the appeal to effect, and to abide by and perform the judgment of the appellate Court in the premises. This is substantially the form of the condition required by the statute, (Clay’s Digest,- 314, § 9,) and would warrant the judgment in ordinary cases against all the parties to it. Here/from the nature of the proceedings, there is no principal against whom to render a judgment, and as the parties by whom the bond is given are at once liable to have judgment rendered against them, no injury results from the omission to render a formal judgment of condemnation. It might be important to the plaintiffs to have execution against the boat, if the sureties of the bond are unable to pay, but in no way does the omission affect the persons who now complain of it. The bill of exceptions and other part of the proceedings sufficiently show that judgment was given for the plaintiff, and therefore the clerical omission could be corrected if necessary on motion.

Judgment affirmed.