C. H. Burke Mfg. Co. v. The Steamboat, "A. Saltzman"

Gill, J.

Defendants seek a reversal of the judg-

ment herein on two grounds, to-wit: First, the insufficiency of the complaint filed, and, second, a want of jurisdiction in the court trying the cause.

I. As to the form of the complaint, or petition, two objections are suggested. It is urged, in the first place, that the complaint is faulty in failing to set out in the body of the same the various items which go to make up the account sued on. The statute providing for such an action (R. S., sec. 773) requires that “the complaint, or other lawful statement of the cause of action, shall set forth the plaintiff’s demand in all its particulars,” etc. In the case now before us, plaintiff’s petition does set out with some particularity the nature of the claim, and is accompanied with a specific, itemized account attached to, and referred to, in the body of the complaint. The petition well stands the test of our practice act, and we see no reason to condemn it in this character of cases. Besides, it is now too late to insist upon such a defect (if defect it is). If the complaint was not sufficiently definite, motion should have been made in the trial court to require a more specific particular account to be set out. As this was not done, the alleged defect was thereby waived. Meyer v. McCabe, 73 Mo. 236. Equally without merit is the objection that the petition does not, in terms, allege that the Missouri river is a “water of this state.” True it is, that the statute provides for such liens as this only as against boats, etc., “used in navigating the waters of this state.” While now plaintiff’s petition does not in these exact words allege the Missouri to be a water of this state, such facts are alleged which show it to be a water of this state. The words of the complaint are: “ That the said steamboat, ‘A. Saltzman,’ is a river craft propelled by steam, and operated on the Missouri to and from St. Joseph, Missouri.” The navigation of the Missouri river to and from St. Joseph, in the state of Missouri, is a navigation of a water of this state. Swearingen v. Steamboat, 13 Mo. 579. Although not in direct terms alleged, it is necessarily implied from what is alleged, that the steamer, “A. Saltzman,',” was used in navigating the waters of this state, and this is sufficient. Grove v. City of Kansas, 75 Mo. 675.

II. The remaining point urged by the defense is that the courts of this state have no jurisdiction to enforce a lien of this nature which counsel for defendant denominates a “maritimelien.” This is claimed to be a case of “admiralty and maritime jurisdiction,” over which the federáis courts alone have jurisdiction as provided by section 2 of article 3, constitution of the United States. It must be conceded that, if this controversy comes within the class of cases named in this section of the federal constitution, then the jurisdiction of the courts of the United States attaches and is exclusive of the state courts. In matter of The General Smith, 4 Wheat. 438 ; The Lottawana, 21 Wall. 558 ; The Moses Taylor, 4 Wall. 411.

By the “cases of admiralty and maritime jurisdiction,” named in the constitution of the United States, is meant that general system of maritime law which was, at the adoption of the federal constitution, understood by the lawyers and the courts to come within that term, and it- is settled, by a long line of decisions in the federal and state courts, that under that general system of maritime law, no lien could be enforced against a vessel in its home port for repairs and supplies there furnished. The reason assigned for this construction rests on the assumed fact that when such repairs were done, or supplies furnished at the home port, credit was given on the personal responsibility of the vessel’s owner, whereas when such supplies, etc., were furnished the vessel in some foreign port the craft itself was.relied on; that at the home port,the owner could be sued personally, and a personal judgment rendered, whereas in a foreign port there was nothing in the jurisdiction of the claimant’s court except the vessel, and, therefore, by virtue of a necessity the party furnishing repairs, etc., was permitted a lien against the rem. The Lottawana case, supra; The Albany, 4 Dill. 439. It follows then, from what has already been said, that for repairs, or sirpplies, to the vessel in a port other' than its home port, a case of general maritime jurisdiction arose for which a lien could be enforced alone in the federal courts ; while on the other hand if the repairs, etc., were supplied at the home port then such claim for a lien would be outside the pale of that general system of maritime law, and a suit might be prosecuted in such courts as might be provided by the state statutes. Authority does not exist in the state courts to hear and determine a suit in rem in admiralty to enforce a. maritime lien (properly so called). But it must be remembered that “such a lien does not arise in a contract for materials and supplies furnished to a vessel in her home port, and in respect to such contracts it is competent for the states to create such liens as their legislatures may deem it just and expedient, and to enact rules and regulations prescribing the mode of their enforcement. The Belfast, 7 Wall. 625-645 ; Cavender v. Steamboat, 40 Mo. 236 ; Mitchell v. Steamer, 45 Mo. 67.

Applying now the foregoing rules to this case, if the plaintiff’s account for supplies and repairs was furnished the steamboat, “A. Saltzman,” at its home port, then it is not a case for the enforcement of a maritime lien under the general admiralty law over which the United States courts have jurisdiction, but comes within the provisions of our state statute for the enforcement of a lien as provided by chapter 20, Revised Statutes, 1889. The home port of the defendant was any port in thé state in which the owner lived. The Albany, 4 Dill. 439. We are not furnished with the evidence as produced at the trial, nor with a verbatim copy of the pleadings. We are warranted, however, in the assertion that evidence was submitted to the court tending to prove that St. Joseph, Missouri, was the home port of the boat sought to be charged, since by defendants’ abstract it is said that the “plaintiff adduced before the court testimony tending to sustain the issues upon the part of the plaintiff,” etc. And since upon this evidence the court found all the issues for the plaintiff we assume that this particular issue was found in favor of plaintiff. Moreover, in the absence of an adverse showing we are authorized to presume in favor of the jurisdiction of the trial court. Waples on Proceedings in Rem., secs. 89-107 ; Huxley v. Harrold, 62 Mo. 523; Dingee v. Kearney, 2 Mo. App. 523.

There appearing no reason, therefore, for disturbing the judgment of the circuit court the same is affirmed.

All concur.