The Schooner Southron v. O'Riley , 21 Ala. 228 ( 1852 )

DARGAN, C. J.

— The libel claims four hundred and fifty-six dollars, for work and labor done and performed on the schooner Sontbron, and for materials furnished within six months next preceding the filing thereof. A statement of the account is annexed, which is as follows:

“ The Schooner Southron and Owners,

To James O’Riley, Dr.

To eleven months and eight days work and labor done on board said schooner, at forty dollars per month, - - - $456 00”

The decree is for two hundred and seventy-five dollars, but the evidence upon which it was rendered, is not made part of the record.

The case standing in this condition, it is contended that the decree is for more than it should have been, according to the allegations of the libel; because, under our statutes, all liens for work and labor done upon vessels, and for materials or stores purchased, must be enforced within six months from the time such labor is performed or the goods are purchased, and if not enforced within that timsej^SOfp"discharged; and that two hundred and forty^plla^is’tneiM"t amount that could constitute a lien on awessel for workTlÓHe at forty dollars per month. J admit, tha|to'|!IJ|StSfeilmms Van only proceed to enforce the collection/ of a debt against la vessel by way of admiralty process, that'k>n|íi|iRás'^‘Sen'pá the ship or vessel; and if the debt creates rretjfen,_QP RiftrEas been lost or discharged, the court has no jurisdictiomto proceed in this manner. Wainwright & Twelves v. Sanders, decided at the last term. I further admit, at least under our decisions, that we may look to the items of the account attached to the libel, to determine whether they are such as do constitute a lien on the vessel. Richardson v. Cleaveland, 5 Por. 251. But, with these admissions, I am not prepared to say, that any portion of the account does not constitute a lien on the schooner. The libel alleges, the work was done within six months from the time of filing the same, and there are no dates to the account showing when the work was done. The entire account consists of one item or charge, and that is of eleven months and eight days work done on the schooner, at forty dollars per month. This may be frue, at least substantially, and still the work may have been done within six months, for it may have been done by the libellant and his servants; and if so, tbe entire debt may well constitute a lien on tbe vessel.

Tbe rule of law is, that error is never to be presumed, but tbe party complaining of it must show it. This could have been readily done in tbe case before us, by making tbe evidence part of tbe record, from wbicb it would bave clearly appeared whether or not tbe lieu of any part of the account bad been lost. Tbe omission to do this, is an argument against tbe plaintiff in error, and rather tends to prove that the evidence would bave shown that tbe entire debt did constitute a lien on tbe vessel. Be this as it may, when a party fails to except to tbe evidence, and thereby make it a part of tbe re'cord, and relies on tbe items of tbe account attached to tbe libel, in order to show that tbe debt does not constitute a lien on tbe vessel, the account must clearly and conclusively show that no lien ever existed, or, if it once did, that it has been lost; and if, from tbe account, it can be inferred that tbe debt might constitute a lien on tbe vessel, we will not reverse tbe decree, on tbe supposition that no lien in fact existed. "We would rather infer that tbe account was not made out with precision and accuracy, if it could be construed consistently with tbe libel and decree, than that tbe court erred upon tbe evidence, wbicb is not brought before us.

Let tbe decree be affirmed.