Coplinger v. The Steamboat David Gibson

14 Ind. 480

Opinion

Perkins, J.

J.— Coplinger filed his complaint in the Jefferson Circuit Court, alleging that he shipped certain articles of freight upon the steamboat David Gibson, at Cincinnati, Ohio, to be delivered to one Johnson, at his landing in Chicot, state of Arkansas, for a certain consideration to be paid; that the articles were not delivered at said landing in Chicot, but were taken to and left at New Orleans, in the state of Louisiana; that damages accrued to him, by the breach of said contract, to the amount of 350 dollars, which, he prayed, might be enforced against said steamboat Gibson, then lying in the waters of the Ohio river, opposite Jefferson county, Indiana. The boat was seized by, and was bonded out from under, an attachment, in vacation, her master executing the bonds, who also took some depositions touching the case, during the vacation.

At the next term of the Court, when the cause was called, the plaintiff moved for a rule for an answer, and the defendant interposed a motion that the attachment be discharged or quashed, and the suit dismissed for causes then assigned.

The Court sustained the defendant’s motion, and dismissed the cause.

This proceeding was instituted under the water-craft law of Indiana; but the case of The Steamboat, &c. v. Richardson, 9 Ind. R. 525, decides that that law does not extend to contracts made and broken out of this state. Perk. Pr., p. 520

(1). It is clear from the allegations of the complaint, that the contract described therein was made and broken out of this state.

Such a proceeding is not authorized by the common law.

But it was contended that the law of Ohio upon this subject was similar to that of Indiana, and that the Courts of Indiana would enforce the Ohio law. They might have done so, had the Ohio law been pleaded and proved; not otherwise. Wilson v. Clark, 11 Ind. R. 385. Even were the Ohio law pleaded in a given case, the Courts of this state would not enforce it further than our own system of judicial proceedings would enable them to do so. Doe v. Collins, 1 Ind. R. 24. See 4 Am. Law Reg., pp. 119, 747.

The pending suit cortld not, then, be maintained against the boat, and the attachment was rightly quashed.

Was the suit rightly dismissed?

A suit in personam, as at common law, could be maintained on the cause of action described in the complaint; and the action would be transitory; but to maintain it, jurisdiction over the person would have to be acquired, either by service of process, or the voluntary appearance of the party.

The filing of the bond and taking of depositions in this case, did not constitute a voluntary appearance to the suit, as one in personam. Ind. Dig., pp. 126, 154.

When the attachment was quashed, then, there was on file in the Court simply a complaint for an attachment. For that purpose, it was unavailing, and should not encumber the docket. Had the plaintiff interposed a motion, before the cause was dismissed, for leave to amend his complaint, and for process against the person, so as to have changed his proceeding to a common-law action, perhaps such a motion should have been granted.

H. W. Harrington, for the appellant (2). W. M. Dwm and A. W. Hendricks, for the boat (3).

Per Curiam.

The judgment is affirmed with costs.

2S. S. p. 183.